We return from an hour’s break, with some GTMO press refreshed by milkshakes purchased from Fort Meade’s Burger King.  A video teleconference with CDR Jennifer Strazza, our next witness, awaits.  Some nuts and bolts precede her testimony—a stipulation about Echo II and the layout of the visitation areas there, apparently.  Another stipulation goes to Strazza’s contemplated testimony, too.  It moots the need for her to appear.

That brings us back to mail, and Judge Pohl’s question of how we shall go forward, given the pendency of AE18 and AE32.  Will there be some kind of interim procedure?  A failure to do so leaves the uncertain status quo in place.  Cheryl Bormann doesn’t like AE18 (a prosecution proposal), and emphasizes the fine-grained character of our current problem: inconsistent stamping regimes.  Those give rise to seizures, even when her client, bin Attash, hasn’t violated any rules.  The problem thus isn’t the lack of a privilege review team for written communications, but the lack of a coherent policy at Camp Seven.  She asks Pohl to take steps to bar nonsense seizures along the lines of those discussed today.  Security problem?  Okay to seize.  But photos of Mecca, or stuff blessed by screeners in 2011?  No.  The court asks about the marking regime as it exists now.  Does non-legal mail get stamps?  It gets a “banner,” according to the Chief Prosecutor; J2 may have a look, as well.  Judge Pohl finds the stamping system ever-changing, and indeed, subject to evolving rules.  This prompts Brig. Gen. Martins to read from the government’s proposed order, AE18, which would stabilize matters.  Bormann isn’t persuaded—what about the “Guan” mark, for books?  And, she says, even Massucco, the responsible official from the SJA, didn’t seem to know what the stamping protocols really were.  At bottom, she’s asking the court to order guards to get their act together, and to confine seizures to those made on legitimate national security grounds only.

Like Bormann, David Nevin objects to AE18.  He reminds the court that his client’s privileged materials were taken and reviewed.  That’s a read for content, Nevin says; the court thinks Nevin is merely characterizing the witness’s testimony, or at least drawing an inference.  The lawyer is confused, then.  If Massucco and company didn’t examine contents, then how could they be concerned about the documents themselves, as they said they were?  The question brings him to join Bormann’s proposal for a inspection-for-contraband-only regime.  But that’s an approach—does Nevin want that on an interim basis, or to wait for resolution of AE32 and AE18?  Judge Pohl asks, and Nevin goes on a bit, citing Al-Nashiri.  The lawyer thinks AE18 irrelevant.  The court ought to order guards not to inspect legal bins for content, and only for the presence of physical contraband.  That will get us to April, and clear a path for resolving AE18 in the meantime.  Questions about appropriate markings can be resolved in consultation with the SJA, he adds.  The court sees workability problems with that last feature.

A pause.  One can see Judge Pohl winding up.

And then he pitches: the defense can propose an order addressing what we’ve come to know as the “bin issue.”  That will provide interim relief, as we await a ruling on AE18 and AE32.  Prosecutor Edwards Ryan is grateful for the practical solution noted by the court—but he pushes gently, nevertheless, in the direction of the government’s proposal, AE18.  That will put the guards in a better, clearer position.  The court neither agrees nor disagrees with Ryan’s idea.  Thus he renews his offer to the defense: seven days to submit a proposal, with any prosecution response due seven days afterwards.  Speed is paramount for the court.  Ryan again gestures towards discovery, which the government has begun to hand over.  He’s eager to get clarity on the rules for handling documents.  He sits.  But Nevin stands, and renews his strenuous objection to AE18, and its definition of “contraband” (among other defects).  Don’t enter that order on any basis, the lawyer argues.  Binalshibh lawyer James Harrington supplies some more context.  The seizures this week, he says, violated privileges.  The impact on our clients is enormous.  The strain on the lawyer-client relationship is simply astronomical.  Every seizure, every piece of paper, is a big deal.

Cheryl Bormann adds two cents: remember, she says, there’s a retrospective aspect to our dispute, and I don’t want that to get lost as we move forward.  The court tells her, in so many words, to brief the question—though there’s the pesky matter of facts.  As to those, Bormann needs witnesses identified.  The Chief Prosecutor recommends an orderly investigation by the Commander.  With that done (and written statements compiled, and so forth), the prosecution can respond to discovery requests and so forth.  Martins imagines a quick turnaround—seven days, he clarifies in response to the court’s query.  The defense lawyer next asks for peace of mind on AE133, which won’t be resolved for some time now.  Thus she asks Judge Pohl to take the accused to Echo II facilities without any installed listening devices.

Ryan is befuddled.  Wasn’t AE133 an emergency?  And we took a day off earlier this week, so counsel could investigate these issues.  The prosecutor wants the “emergency,” “top of the docket” aspect knocked out, given our current posture.  He adds that Echo II staff obviously can disconnect monitoring equipment, but doesn’t want to run afoul of any extant preservation orders.   The court reminds of huts 1 through 4, where broken audio equipment never has been repaired.  Disconnect the wires in those huts.  And, Judge Pohl adds, removal won’t violate any of my orders.  So much for Bormann’s concerns there.  Obviously, she believes that, once the evidence winds up, the defense will prove clearly and convincingly that, yes, attorney-client discussions have been monitored.  On that note, Judge Pohl acknowledges the procedurally obvious: there won’t be any immediate abatement now, so the defense’s motion is denied in that regard. But it is still live with respect to any past harms.  A last word from the prosecutor, who stresses that removal does in no way imply prior use by audio equipment.

Wrap-up and housekeeping now: remember how the defense wanted to supplement its motions to compel, in light of Judge Pohl’s (then oral, now written) ruling on Rule 703? Well he’s received some, but adds that some of the supplemented defense requests appear to be moot.  Take Col. Torres, for example; we don’t need to discuss his testimony, having heard it this week.  Some tut-tutting from the court: ex parte witness requests are for exceptional circumstances only.  Remember that.  “Exceptional,” the court says, doesn’t mean “defense wants not to show its requests to the prosecution.”  Ruiz urges the court to compel testimony from the Convening Authority’s legal advisor, Michael Breslin, and to bear in mind testimony about him from Admiral MacDonald.  But Ruiz doesn’t know what Breslin will say—and that leads the court to reject Ruiz’s request.  James Connell III sees an opportunity here: he withdraws motions to compel AE45, AE48 and AE61.  The court then goes down the docket, mentioning Admiral Woods.   Why compel him to appear?  Nevin cites communications between Woods and the Convening Authority and SOUTHCOM in fashioning the baseline review.  Prosecutor Jeffrey Groharing notes that none of the foregoing is disputed; and that, as usual, the defense never spoke to its sought witness—who departed GTMO during the nine months that the defense motion has been pending.

Here’s some emphasis for the Chief Prosecutor: we have discovery that will help these issues to get resolved.  But, he tells the court, we can’t produce it until counsel sign the memorandum of understanding under the protective order.  Judge Pohl hears him.  If counsel choose not to sign on to the protective order, then they might have to leave the case: the defense cannot go forward in a case like this without access to classified material.  In colloquy with Ruiz, Judge Pohl notes the ABA Guidelines.  If he becomes aware that counsel elects not to investigate potential defense, he might have a duty—under the Guidelines—to inquire.  What if counsel refused to apply for a security clearance?  He’d be curious about representation issues in that case.  Nevin understands those issues well: the order, he says, precludes him and others from sharing classified information with their clients.

Whew.  The court resolves our last pending motion to compel, regarding Admiral Woods.  His testimony is found both relevant and necessary.  We’ll thus see him, and Admiral MacDonald, in April. He urges the defense to make any and all preparations necessary to streamline the upcoming testimony—to examine Woods’ rulings, and to interview MacDonald, for example.

A word or three more (about Rule 505(h) and (g) arcana, which we’ll mercifully excise), and we’re done.  See y’all in April, when we may get to the big-ticket law motions.

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Nine minutes past the hour, and the session resumes with some bickering about delays.  Recess was supposed to last until 1300, but, alas, we’ve reconvened a bit after that.   Judge Pohl wants an explanation for the delayed start time; apparently today’s prayer session ran a bit late.

We hear about this for a few minutes, and then march on—to searches of the accused’s legal bins, while they attended court proceedings earlier this week. On the stand is LT CDR Massucco, an assistant SJA. He tells bin Attash lawyer Cheryl Bormann that he only recently began work on privilege and mail matters.  Legal mail comes (when it comes at all) through a screening process, is marked, and goes on to the privilege review team?  Yes, Massucco says.  It turns out that some seizures indeed took place, both on February 11, and yesterday, February 13.  The former involved bin Attash, the witness says.  How many packets of material do you have, sir?  Four or five, Massucco says.  He’s looked at these, but not reviewed the documents in any depth.  Most, but not all of the papers bore JTF stamps.

The Chief Prosecutor cautions that defense counsel is inquiring about the defense’s own allegedly privileged materials—and thus inching closer to open discussion of confidential subjects. While he does, Bormann rises and reclaims several envelopes from Massucco.  Hold on there, he says: there’s potentially classified stuff in the envelope.  Martins interrupts, noting that some of the seized-but-now-recovered documents were observed in plain view, and that open-ended questions might better elicit what actually transpired—without having to get into what the confiscated papers say.    Read more »

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Romance is in the air—and waves of the purest judicial authority—as Judge Pohl calls our session to order.  The five men accused of planning 9/11 are present in the courtroom, along with lawyers for defense and prosecution alike.  Ditto representatives of the FBI.

An accused, Walid bin Attash, stands.  Why is he standing, the court asks Cheryl Bormann, one of his lawyers.  It has to do with the seizure of materials from bin Attash’s legal bin that she brought to the attention of the court yesterday: stamped items, already reviewed, were grabbed.  The lawyer is irate, and insists on both an ex parte hearing and a remedy.

The Chief Prosecutor is visibly concerned, though he explains his distance from the issue, which is the responsibility of JTF, and not his office. Nonetheless, JTF has officials who can get to the bottom of the issue—at least until a written communications order is entered in this case.  Bormann again: what gives here?  This week, while CAPT Welsh testified that JTF never seized privileged communications, JTF was busy seizing privileged stuff—including documents directly relevant to defenses in this case.  And she’s not interested in bureaucratic niceties.  She wants a judicial remedy, now.  The defense can’t do its job under these conditions, she says—and her client is still standing in apparent protest.

Judge Pohl says we’ll turn to Lt. CDR Massucco, the official in question, afterward Vice Admiral MacDonald’s testimony, which is certainly not enough for bin Attash, who speaks (in Arabic, his words here translated): “in the name of God, there is an important thing for you.”  Judge Pohl orders the man to sit.  He doesn’t: he hasn’t been sent here to testify, he adds.  The court warns bin Attash sternly, cautioning that he could be taken out of the courtroom, adding that bin Attash is fearful of more seizures of legal materials, while the accused are here in court.

David Nevin wants the seizure issue up front.  It cannot wait until after MacDonald’s testimony, he says, as JTF appears to be seizing and re-reviewing materials already stamped during the baseline review.  This issue goes to our ability to represent these men, as the discussion of the Guidelines yesterday illustrated.  The most important of these called for the establishment of a trust relationship–which JTF appears to be crippling in its handling of attorney-client documents.  One of MacDonald’s duties as Convening Authority, Nevin reminds the court, is to ensure the sanctity of these proceedings.  Wouldn’t he, therefore, insist on resolving mail issues now?  The question is lost on the court, who reminds counsel that procedural issues in the court are for his resolution alone, and not for MacDonald.  Binalshibh’s lawyer, James Harrington, joins Nevin’s remarks, as do other counsel.

The court still sees no prejudice in starting with the Convening Authority, counsel’s argument notwithstanding.  So that’s what we’ll do: start with the Convening Authority, who appears via video.

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Judge Pohl reconvenes, and wonders: does the Defense have any issues that will need addressing tonight? For his part,  Ruiz has a question regarding Admiral MacDonald’s testimony at 0900.  Has the burden shifted to the prosecution on AE31, the motion to dismiss for unlawful influence?

No, Judge Pohl says that there’s no evidence before him on those issues, which is true of every motion.  But that’s sort of the point, for Ruiz.  He mentioned attachments to the motion—will those be considered?  And what about the discovery issue he discussed at length with Judge Pohl earlier in the day?  If the burden indeed has shifted, then, Ruiz says, the defense would like to make that argument to the court. Judge Pohl says he will start with AE31: if the public documents appended to that motion are offered as evidence, and if there’s no factual dispute about them, then Judge Pohl will consider the attachments in deciding the motion. Shifting the burden is a legal conclusion, he says, and there is no evidence before him right now, with which to decide AE31.  If the parties want to discuss AE31 right now, he says, we can do so—but Judge Pohl is reluctant to discuss burden shifting on a dry record. Unlawful influence has a burden shifting element to it, sure, but it is no different from other burdens.  The court thus doesn’t have an opinion on whether the burden has been met here; not at least, until he’s heard all underlying facts. A court doesn’t make a preliminary decision on the burden shift, and then take evidence on whether the defense has met the burden and if the government has rebutted the burden.

So much for that issue; Judge Pohl then asks about near-term scheduling—in particular, what questions of law are before him.  AE091, AE104, AE105, and AE106, says the Guv’ment.  (Al-Baluchi’s counsel, Sterling Thomas, is the proponent of all the motions in this group.) Another filing, AE107, has many legal aspects to it, and—Lawfarer’s pause—Judge Pohl says he really wants to address the conspiracy component in particular.  But that will only happen in due time.  While the court has a sense of the arguments, it will save AE107 for our upcoming April hearings.  So put those four questions of law, plus the witnesses, on the agenda for tomorrow.  Looking further afield, our schedule looks like this: We are adding a session on 17 June, in addition to the April dates already agreed upon.  And Judge Pohl plans to go five days in April, he says.  Judge Pohl warns that no side should assume that the docket won’t be changing between now and the April hearings.

Bormann flags an issue for the court, one at the very heart of AE32 and AE18, the pending defense and prosecution submissions regarding written communications. The gist: Bormann worries that properly-stamped legal mail is being searched while the clients are away from the detention camp—that is, while they are present for pre-trial hearings at the ELC.  That seemed to happen yesterday, while bin Attash attended court proceedings: several documents went missing from his legal bin, including privileged documents.  Thus Bormann moves to require the court to enter an interim order to get the documents back. She believes that a third party is in possession of material that is attorney-client privileged.  She’s emphatic and modest at the same time: All she asks is that Judge Pohl endeavor to prevent further violations. Judge Pohl says any lawyer knows not to violate the privilege. Of course, Bormann reminds the court that the privilege team doesn’t report to the Prosecution or to the Judge. Judge Pohl is trying to find solutions, he says—but the only option is to use the privilege team.

Bormann: if the material has been properly stamped but is seized, then it should not be reviewed any further. General Martins says the Government wouldn’t oppose some manner of interim relief here—a draft order maybe—but Judge Pohl isn’t interested.  He won’t issue an order on motions still subject to litigation as AE32 and AE18 are. In the meantime, the privilege team will be advised to look for stamping, but not for anything else. Harrington and Nevin both believe their clients–who, like Bormann’s, were here for court yesterday—confront this problem.

And. . .we’re adjourned until Thursday morning.

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Col. Sterling Thomas, counsel for al-Baluchi, calls our next witness: Ms. Robin Maher, a law professor and (most relevantly) Director of the ABA Death Penalty Representation Project.

Thomas inquires about the ABA’s 2003 Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (the “Guidelines”). Between prosecution objections—and after a few changes in tack by Thomas—-Maher discusses the process by which the Guidelines were drafted and adopted by the ABA.  The Guidelines apply to all lawyers, civilian and military, handling capital cases.  That marks a change: the old regime applied only to trial lawyers.  Thomas asks why the military was included in the 2003 guidelines.  Maher’s answer is simple enough: Military attorneys were facing the same struggles as their counterparts in civilian courts.  This satisfies Thomas, who sits.

Bormann seems to revisit one of Thomas’s questions, which drew an objection earlier.  What about Guideline 10.5’s revisions?  These made the rule say that open communication is necessary to capital representation. Does Maher know what motivated the ABA to add that language in 2003?  She lists reasons: court cases, what courts were saying about the performance of counsel in those cases, and the lack of client contact.  The latter was the number one reason underlying complaints to states’ bar associations. Were there any particular cases that you referred to, Bormann asks? Maher doesn’t recall.

Prosecutor Jeffrey Groharing stands, and asks questions focused on Maher’s resume and qualifications.  The defense objects to many of them.  Groharing seems to be asking whether Maher really has expertise on the death penalty? Maher hasn’t tried any criminal cases as a lawyer. Objection again: Maher’s job is to organize people, KSM lawyer David Nevin argues, not offer any personal opinion.  But Groharing thinks her background relevant—to what, Judge Pohl isn’t sure. After all, she’s testifying as to the ABA’s Guidelines, not as an expert witness.  The lawyer then shifts gears, from background to the Guidelines themselves.  Maher was there when they were created, and, she continues, she doesn’t think the death penalty works in a constitutionally-sound manner.  Groharing sees an opening.  So, your objections to the death penalty are centered around whether there’s adequate representation to defendants in a capital trial? Yes. Well, then, I guess you’re fine with a prisoner’s execution, provided his lawyer performed in a constitutionally adequate way?

Maher doesn’t answer because the court sustains a defense objection. Nevertheless, she articulates her views in subsequent answers to other queries.  For the ABA, the death penalty is the law of the land.  Maher says the organization takes no position as to the rightness or wrongness of capital punishment.  Groharing strains hard to unearth Maher’s personal biases about capital cases, but to little effect: Judge Pohl sides with the defense’s many protests.  After several do-overs, the court instructs the prosecutor to frame his question carefully.  This is your last chance, warns Judge Pohl. Here’s the windup, and the pitch: are there circumstances where you personally would support the imposition of the death penalty?  Maher answers no, not at the moment.  She doesn’t think the system can provide the constitutional requirements to sustain a capital punishment system.

The prosecutor pushes on.  What about the commentary attached to the Guidelines, which weren’t formally adopted?  No matter, says Maher.  Or the Guidelines’ advisory committee: didn’t DOJ lawyers object to the Guidelines’ provisions on mitigation?  No, criminal prosecutors within the ABA’s criminal justice section did, Maher says, not DOJ specifically.  And can an attorney be effective without following every single Guideline?  Sure, if in the attorney’s reasoned judgment, there is a strategy that they believe would be more effective.  Finally, we come to the MCA 2009.  Did Maher play a role in its creation?  No, though she acknowledges that the Guidelines could have been considered during the statute’s drafting.

The newest addition to KSM’s defense team, Gary Sowards, wants Maher to talk a bit more—about her interpretation of the Supreme Court’s Van Hook case, and about certain other facets of the Guidelines. The lawyer’s long-form, chatty approach (he does a good deal of reading aloud) draws scrutiny from the bench.  Judge Pohl says Sowards is testifying, and instructs him not to lead Maher—who eventually adds more detail.  There’s a bit more in this vein. Among other things, Maher explains the need for mitigation specialists—and then the lawyer is done.

Ruiz gestures towards the accuseds’ vague legal status, by asking whether Maher still would have concerns about the death penalty, if the Constitution didn’t apply at Guantanamo.  Judge Pohl thinks the question to be self-answering—but allows it anyway, given the Guidelines’ great significance for filings in the case.  The court’s interruption, however, seems to swallow the witness’s answer.  Judge Pohl goes on to ask some questions of his own, regarding adoption of the Guidelines (it’s different in every state); determining effectiveness of trial counsel who deviate from the Guidelines (courts have to exercise judgment here); and how judges can preclude, at the ground level, ineffective representation (that’s beyond Maher’s level of expertise).  Sowards rises and picks up where the court left off.  One of his queries: what if a particular attorney, after relying on the Guidelines, wants to base a decision on his professional judgment? Absolutely, Maher answers.  The Guidelines allow for that.

Cheryl Bormann is back, and asking Maher about Illinois’ adoption of the Guidelines. The Government objects.  So does Judge Pohl, it seems: he cares about federal practice, not practice in the several states. The colloquy brings Maher’s testimony to a close.  Judge Pohl excuses the witness.

15 minute recess time.

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Up next at the witness chair Ms. Robin Maher.

Wait—that’s not quite true.  First, we have a sidebar about the Convening Authority, Bruce MacDonald.  His testimony is set for tomorrow, on AE08 and AE31.  The defense’s motion for discovery, AE47, implicates both of those motions, so Judge Pohl will hold off on that submission until after the court hears from MacDonald. But Ruiz sees things differently: AE47 will inform the court’s resolution of A008 and A031, and therefore the lawyer wants the discovery motion out of the way—now—so that the defense isn’t forced to question MacDonald without access to as-yet undiscovered material.  In that case, Judge Pohl says, we’ll just recall the witness.  Thus, an impasse: for its part, the defense believes it needs additional documentary discovery (and, consequently, extra time) in order to prepare for MacDonald’s testimony; but the court doesn’t want to rule on discovery until after MacDonald testifies.

The defense emphasizes the unfairness in play.  The lawyers only just received unclassified discovery recently, and the submission is over 1,000 pages. Now we have to slog through all of that before tomorrow, in order to be ready for MacDonald’s testimony.  Ruiz also notes an inconsistency in the prosecution’s practices: the government delayed its production initially, citing the defense’s refusal to sign a memorandum of understanding (“MOU”) related to the protective order as the reason. But then prosecutors provided the documents to the defense anyway, notwithstanding the MOU’s status. Judge Pohl, for his part, is curious about that subject. Why haven’t y’all signed on to the protective order? The failure to do so deprives you of access to classified discovery material.

The answer: because the defense still has ongoing litigation over the protective order’s language. The court thinks that dispute needs to be resolved, but in any case says that the defense must live with its choice to delay discovery. And wait a second: Ruiz and company had enough information to file their motion, but not enough to litigate it? What was the basis for the filing? Nevin has the answer. We file motions when we have met a threshold of a good-faith effort, your honor—but that doesn’t mean we stop investigating. Instead, I file my motions just as soon as I have enough facts to support them, while at the same time striving to learn as much as possible.  The defense lawyer also notes the case’s uniqueness, and the procedural problems of commissions practice.  Judge Pohl’s brow furrows.  Cdr. Ruiz, were you ready to litigate the motion when you filed it on 5 May? Yes, Ruiz says—based on the discovery available at the time. He wasn’t in the best position to argue it, however, and instead made a tactical decision to push on.  Judge Pohl and Ruiz trade a few quibbles more—about classified discovery, and sluggish response times—and an irritated court decides to hear the other side’s view.

Addressing prosecutor Jeffrey Groharing, Judge Pohl asks about Ruiz’s discovery motions from April 2012.  Why did it take so long for the government to respond? This had to do with referral materials, Groharing explains, along with legal adviser’s advice to the Convening Authority.  Some of these items were classified—and, by way of reminder, we’re still waiting for the defense to sign the MOU. Judge Pohl says he only cares about unclassified stuff, as many classified documents apparently had been modified, so as to allow for production to the defense. Thus he queries Groharing once more.  So there was a delay, with the expectation that the MOU would be signed soon—but that didn’t happen? Yes. The prosecutor adds that the defense hasn’t attacked the legal adviser’s counsel as defective; and that the defense elected not to talk to MacDonald back in April, contrary to the prosecution’s suggestion. Any lack of preparation is their fault, not ours, Groharing seems to argue.

Ruiz rises again with a separate discovery complaint, this one about AE31—the defense’s motion to dismiss for unlawful influence.  In connection with that, Ruiz interviewed the former Chief Prosecutor, who stonewalled every question, save those regarding his name and his rank. Judge Pohl is interested here about the Convening Authority, not Mark Martins’ predecessor. In any event,  So what AE31 will MacDonald’s testimony address? Perhaps hesitatingly, Ruiz says he desires to know how the administration’s public statements might have affected MacDonald’s selection as Convening Authority and decisions while in office. Then wouldn’t it be useful, the court says, to hear from MacDonald tomorrow? Once we’re done with the discovery motion, the defense can recall him.

Judge Pohl thought he was done with all of this.  He was wrong.  Now Groharing opts for a second play on his earlier string.  I was there, Groharing says, when Ruiz decided not to interview MacDonald. That seems a moot point, as Judge Pohl now has decided that, in fact, the Convening Authority will testify on Thursday.

A short break, and then on to Ms. Maher’s testimony.

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Back from lunch. Col. Bogdan is still on the stand.  Edward Ryan, a Justice Department lawyer, speaks for the prosecution.  His questioning makes very clear: Bogdan has never recorded attorney-client visits, never authorized such recordings, and acknowledges that it would be his responsibility to know about it if any recording were going on. And if such recording really were going on, there would be consequences, he says. His guards respect the chain of command.

On to the cameras: with the exception of the ICRC, visits in the huts are not monitored (where, as he explained earlier to the defense, the guard stands outside an open door). And that arrangement would never be acceptable for attorney-client visits, would it? No, it would not, the witness says.  And what is the purpose of the camera, anway? To be sure the detainee doesn’t harm himself, anyone else, or escape. The camera’s zoom feature also is only to be used for safety-related purposes. Bormann objects from her seat, and Judge Pohl gently reminds her that she has to stand. Well, Bormann says, I can’t stand and talk into the microphone at once.

In the location where possible audio recording could occur, Bogdan has not seen any earphones. Here’s Ryan again: are the microphones in those huts visible? Yes, they are, in fact. Well, if you really were trying to surreptitiously record, then couldn’t you have installed pin-sized mics? Bogdan agrees that it’s not an ideal setup for secret recording.  So it took about 4-6 weeks to repair the audio—did Bogdan know the capability had changed? Did anyone come to you about this change? No and no. J2, despite not being under your command, still has to receive your permission to access Echo II, yes? Of course, the witness replies.  And with that, Ryan’s inquisition is over.

Harrington is back up with some more questions, though. They talk a bit more about the different huts and then return to the cameras. The intent of the video cameras is to prevent the transfer of contraband? Well, if that is true, then what about the extensive searches defense lawyers go through already.  Wouldn’t those turn up any contraband? Why not use the same procedure the ICRC uses, with the open door and the guard outside? Because, Bogdan explains, that approach would harm the attorney-client privilege, of course.

More on this theme: Bogdan has never done a sweep, searching for other listening devices in the huts, and he doesn’t plan to.    Harrington peppers the witness with more inquiries.  Why can’t we designate a single hut for attorney-client visits without any equipment in it at all, even devices that aren’t working? How many visits can you accommodate at a time? Judge Pohl interjects: can you accommodate all defense teams at one time right now? Yes, we can, Bogdan confirms. So, Judge Pohl says, if you were to physically remove the non-functional devices in huts 1-4, you could accommodate all the defense counsels meeting with their clients at once? Yes. Read more »

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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. Read more »

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Lt. Col. Ramon Torres now testifies by VTC from Orlando, Florida, where he works in the human resources command.  But his testimony is not strictly directed to monitoring matters; instead, explains bin Attash lawyer Cheryl Bormann, Torres’ answers will relate more to AE32 and AE18 (the defense’s and the government’s motions, respectively, regarding privileged written communications) and AE008 (the defense’s motion to dismiss for defective referral).

Torres served at GTMO for about one year, from 2011 to 2012.  He was assigned to the Staff Judge Advocate’s office, where he worked on high-value detainee matters, and in coordination with CAPT Welsh (who then held the rank of CDR).  Among other things, Torres took mail to and from high value detainees.  Bormann is particularly interested in mail procedures, which the witness describes: Torres would receive mail sealed, and then take it to Camp Seven, the high-value detainees’ home.  If the mail’s recipient wasn’t busy, then Torres would give it to the detainee (who might or might not accept it).  Then Torres would unseal the mail, perform a cursory check for contraband, and hand it to the accused.  The inspection would involve removing the papers from the envelope, and flipping through the papers briskly, as one would shuffle a deck of cards.  The idea was to look for paper clips and the like.  But, Torres testifies, he never looked at the contents of mail, or read the writing on the pages.  Did Welsh ever give Torres instructions about mail rules?  The latter received instructions mostly from another fellow, an Air Force JAG; there also was a standard operating procedure (“SOP”) in place, which Torres followed.  Much as before, the witness is emphatic that the SOP did not call for the reading of detainee mail.  Okay, so much for counsel mail to the detainee; what about detainee mail to counsel?  The procedure was roughly the same, though in reverse, answers Torres.

Bormann moves to Echo II, the meeting facility.  The witness had a role there, and helped to perform document screenings for attorney-client visits.  The SOP governed this work, Torres responds, along with another document—the name of which he cannot recall.  Same question as before from the lawyer: did the SOP or other document call for reading of detainee-lawyer communications?  No, again.  Read more »

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We’re back, with CAPT Welsh still on the stand and Schwartz concluding his examination.

The latter asks about tracking: to Welsh’s knowledge, does JTF-GTMO make records, when any audio monitoring is conducted?  Welsh stresses that he only has knowledge of camp practices in effect since his arrival. And his knowledge is limited these days, for practical reasons.  And that’s because, by the time Welsh and JTF GTMO learned of the court’s preservation order regarding courtroom monitoring equipment—from a little website called “Lawfareblog”—all audio monitoring equipment at Echo II already had been disconnected.

Over to CDR Walter Ruiz.  Unlike his fellow defense counsel, Ruiz is willing to pass over legal bin matters—which are not yet under discussion, strictly speaking, just yet—and to stick with the issue of improper audio monitoring.  That’s okay by the court. Oddly enough, Ruiz doesn’t ask about mail or attorney-client discussions.  Instead he inquires about the bureaucratic structure within the JTF GTMO, including the relationships between intelligence personnel.  This confuses Judge Pohl; Ruiz clarifies that he’s not interested in organization charts, but in who has authority over who.  Welsh answers that the reporting structure in question might have changed prior to his tenure as SJA; he likewise doesn’t believe that translators affiliated with JTF’s intelligence operation at Camp  7 (where the mail review was conducted) can mingle their translation activities with intelligence gathering.  Judge Pohl doesn’t see how the legal bin operation bears on audio monitoring of attorney-client discussions; after all, Ruiz said he was only interested in the latter.   The defense lawyer then moves on to Welsh’s official mission as legal advisor.  But Welsh’s account doesn’t jibe with the contents of JTF-GTMO’s website—which, and unlike Welsh’s testimony, apparently suggested JTF GTMO’s “partnership” with law enforcement offices like the Criminal Investigation Task Force.  The questioning draws a battery of prosecution objections, which an irritated court sustains.  This isn’t a quiz about the web page, CDR Ruiz.  The defense lawyer now wants to ask about “partnerships” between JTF and other agencies—ones that might be classified.  Judge Pohl bats this away, repeatedly, on relevance grounds.  What does this have to do with inappropriate monitoring of attorney-client conversations?  The court’s rulings cut Ruiz’s examination short.

Clay Trivett addresses the witness, beginning with the baseline review.  Welsh knows why that review was conducted; did the reasons have to do with items found in the accuseds’ cells?  Yes, it did.  And remind us, CAPT Welsh: you were assured that nobody—nobody—listens in to attorney-client discussions?  Right.  Why do you take this issue so seriously?  Welsh cites the issue in these cases, habeas litigation, U.S. intelligence oversight laws, and other things.  Trivett then mentions the many dire consequences that might follow, should Welsh or his colleagues attempt to cover up an inappropriate monitoring scheme.

The prosecutor asks Welsh about how the by now thoroughly-discussed Echo II listening device actually looks.  Do its markings at all suggest that the device isn’t a microphone?  This confuses Judge Pohl.  What difference do the markings make?  The prosecutor notes that a simple, Google search of the device’s brand name (visible on its exterior) would reveal that, yes, it is indeed a microphone—and not a smoke alarm or other item.  Trivett also asks Welsh to confirm that, in correspondence cited by Nevin, JTF-GTMO personnel pointedly said that they don’t listen to, or record, attorney-client discussions.  Ditto intelligence personnel: these told Welsh that intelligence collectors have no assets or interest in Echo II.   Time for the sum-up.  Nobody’s listening to attorney-client chats?  That’s right, Welsh says.  And nobody’s recording them either?  No recording, either, answers the witness.   Trivett asks a few more questions about meeting locations; Welsh agrees that meetings only take place in the ELC, the holding cells, and the courtroom.  Prompted one more time by Trivett, the witness doubles (triples?) down: there is no audio-monitoring of any attorney-client meeting at JTF-GTMO.

Thus concludes Welsh’s testimony—for the time being.  He’ll pause, while another witness prepares to join us via VTC.  That will happen just after a half-hour prayer break, which commences now.

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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.  Read more »

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David Nevin stands and says he recently received some documents–evidently copies of emails–regarding CAPT Welsh, our next witness, and his intended testimony on AE133.  The lawyer wants to read these before examining Welsh, and prosecutors don’t object to a brief recess so that Nevin can do so.

Judge Pohl doesn’t understand: why is Nevin only receiving the Welsh emails now?  On behalf of the government, Clay Trivett explains that his side’s discovery burden has been serious, and that the materials had to be reviewed and redacted before production to the defense—thus the turnaround today.  Trivett adds that there won’t be a similar problem with respect to COL Bogdan.  But the prosecutor also is careful not to take total ownership of the discovery delay.  We cannot turn any classified discovery over until defense counsel sign the protective order’s memorandum of understanding.  But they haven’t yet.

Nevin and Bormann add two cents.  The latter insists that, Trivett’s claims notwithstanding, her motions regarding written attorney-client communications don’t implicate classified material at all.  But that strikes Judge Pohl as the mail issue, which is set for discussion later; we’re interested now in monitoring.

In any case, Nevin will get his recess.  It will last until 13:00.

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Prosecutor Clay Trivett questions Elkins, turning first to his professional qualifications.  The witness understands how the courtroom systems work—even those systems in which he isn’t formally “certified?”  Yes.  And Elkins again confirms that the court reporters have special software that can isolate individual audio channels from the broader, undifferentiated mass of audio signals that are piped to them.  There’s no other way for any other party to record, Elkins testifies; without the reporters’ special software (called “FTR Gold”), one can only listen in.   The pregated—that is, open—feed may travel, but only if sound reaches a particular decibel level.  Elkins affirms that FTR Gold is commercially available and the industry standard.  But court reporters cannot, for instance, amplify whispered or quiet sounds that particular microphones detect.  The recordings are preserved on hard drives, to which Elkins and his staff have access. But no one from the prosecution has ever asked Elkins for the audio recordings, nor has any other entity of the United States government.  And Elkins wouldn’t surrender them on request, either—a motion would be required.

The witness also says that the accused’s table speakers, over which translation is broadcast, did not affect the microphones at defense counsel table.  There are a few more notes about the difference between the recent past and present; Elkins confirms that, under our old approach, a microphone’s “mute” feature would preclude overhearing by that microphone.  And while low volume-speech might be detected by the court reporters’ FTR software, the live feed from the courtroom could not be.  The witness agrees with Trivett’s hypothetical, too: the lawyer suggests that, with all of the ambient noise from all thirty-two of the courtroom’s microphones, the OCA and translators will overhear what sounds only like chatter in a crowded restaurant.  The latter two won’t be able to isolate individual microphones, like the court reporter can.  Finally, Trivett asks about Elkins’ past precautions.  Didn’t he put up warning signs, reminding counsel to hit the “mute” button for sidebars?  Elkins did indeed.  It is up to the attorneys to protect their conversations, he seems to say.  Elkins likewise notes that the accused can view CCTV broadcasts from trailers adjacent to the ELC.  But there are no microphones there.

Now David Nevin has questions for Elkins.  The counsel table never addressed the muting of all microphones—but only addressed the need to mute particular microphones at counsel table, right?  Well, some additional caution was assumed, says Elkins.  Not good enough: the court stops him, and the witnesses acknowledges that, no, his placards didn’t warn counsel about what microphones at other locations besides counsel table might detect.  The witness likewise accepts that sufficiently loud, intoned comments could be overheard, too—by microphones as well as people.  Elkins, when pressed, also confirms that the ungated feed goes not merely to the court reporter, but also to the OCA.  But he underscores that tone and volume level determine what, exactly, the two recipients of the feed can and cannot hear.

There’s a bit of humor, as Nevin and Elkins catalog the room’s working mics: Elkins pushes his microphone’s button, to disable it, and states that he therefore can only be heard in the courtroom (which obviously isn’t true: all in Smallwood hear his remarks).  The witness insists that only his office makes recordings of courtroom audio—the OCA doesn’t do that.  The court chimes in, summarizing what, in its mind, Elkins testimony stands for: the OCA’s feed is undifferentiated, and often consists of ambient noise.  Without FTR software, OCA can’t pick out this or that muttering.  Nevin presses hard finally: you don’t know what the OCA does with the sound it receives, do you?  No Elkins doesn’t, in fact.  Thus, Nevin argues, it is at least possible that the OCA could record courtroom audio? The lawyer similarly observes that the OCA might buy its own FTR software, and engage in the same sort of parceling out that the court reporters engage in.  We then move to an odd colloquy: the lawyer wants to know whether Elkins interfaces with the OCA, as part of his work; Elkins says he cannot tell who he talks to from one day to the next, because nobody shows him credentials.   His duty is merely to interact with people, broadly defined, though he doesn’t interact with detention personnel at Guantanamo, or with the base’s FBI field office.  Elkins also denies having ever suggested that only court reporters receive the live, ungated feed.

Connell returns to Elkins’ claim that parties other than the court reporters cannot record what they hear—having in mind the interpreters, and the OCA.  The prosecution objects to this as it was already asked and answered during the witness’s discussion with Nevin.  Judge Pohl sides with Trivett, and proceeds to quibble with Connell about what his inquiry genuinely goes to. But in any event, the witness doesn’t have knowledge about the OCA’s technical capabilities.  Anger overtakes the court when Connell again asks about OCA equipment—you’ve already gotten your answer, Judge Pohl says, and you’re stuck with it.  He doesn’t know what the OCA’s capabilities are.  (Weirdly, when asked roughly the same question a third time, Elkins answers that he cannot delve into classified stuff.)  Connell presses again on the open feed, which, Elkins acknowledges, can be heard by the OCA under certain conditions.  Then Connell again ventures into the subject of OCA equipment—and again draws an objection from Trivett, a chiding from Judge Pohl, as well as (oddly) a reference to potentially classified material by the witness (who, as we know, earlier had denied all knowledge of OCA technology).  The try prompts argument about Rule 505, and the invocation of the classified information privilege by the government.  The court instructs the defense attorney to move on, which he does.  A few more questions, and Connell winds down.

Here’s Cheryl Bormann.  Mr. Elkins, you aren’t in charge of the court reporter?  No, he isn’t, and thus doesn’t know what the reporters do with the audio they receive.  Thus, the court reporter—and not Elkins—would be the contact point for audio recordings. CDR Walter Ruiz, Mustafa al-Hawsawi’s lawyer, rises to say that he might have a question—but doesn’t know.  He adds that his inquiry might upset the court; he’s eager, obviously, to push Elkins on seemingly inconsistent answers about the OCA’s ability to record audio.  How can Elkins not know what the OCA’s capability is on the one hand, and then surmise that the OCA doesn’t record what it receives, or that it cannot separate out audio channels on the other?  Elkins cites his own experience: to his knowledge, on the court reporter can record.  Ruiz presses: do you or do you not know what the OCA can do?  Elkins filibusters, and says he cannot speculate.   He doesn’t know what anybody’s capability is.

So much for Elkins; we’ll push now to COL Bogdan and CAPT Welsh, who are ready to testify on monitoring matters.  But first—a quick bathroom break.

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The Smallwood Screen comes alive, with Judge James Pohl seated at the familiar, authority-emanating bench.  A glow likewise surrounds the wall’s JTF insignia; it seems to say, “let us reconvene and discuss attorney-client communications.”  So we do, at 9:02 a.m.  Prosecutors and defense lawyers are present, along with three of the five accused—Khalid Sheikh Mohammed, Ramzi Binalshibh, and Walid Bin Attash.  FBI and other government agents are here, too.

Housekeeping first: Prosecutor Robert Swann calls his usual witness, a JTF staffer, to testify about the two absent accused, Ammar al-Baluchi and Mustafa al-Hawsawi.  The lawyer asks, and the JTF staffer confirms, that both men were advised of and understood their rights to attend, but knowingly waived those rights.

With procedure done, we move to the substance, and to AE133, and the alleged monitoring of confidential attorney-client discussions. The court immediately asks KSM lawyer David Nevin about the latter’s proposed remedy for the alleged monitoring.  He pivots a bit. The government, argues the lawyer, must demonstrate that it has not benefited from any improperly acquired communications.

The Chief Prosecutor, Brig. Gen. Mark Martins, is keen to nip any lengthy counsel argument in the bud; he thus interrupts and notes the narrowness of the inquiry before the court.  When asked about Nevin’s proposal, Martins asks to get information—rather than argument or speculation—on the record.  Judge Pohl affirms that argument and proffers are not evidence.  He also returns to his own well-worn theme, by emphasizing what is not before him: who hits the censorship button, and whether the proceedings can be heard generally.  The question instead is whether protected attorney-client conversations indeed can be monitored; and, if they can, what the court ought to do about it.  This brings us to the evidence.

Maurice Elkins, the CCTV program manager since 2008, is the defense’s witness.  J. Connell III, al-Baluchi’s lawyer, questions him. When asked, the witness distinguishes between “gated” and “ungated” audio: in the former, a microphone doesn’t “hear” until it detects a particular tone or decibel threshold; the latter, however, “hears” everything, as nothing requires the equipment to stop picking up sound.  (Elkins illustrates this almost musically, by varying the pitch of his voice.) Read more »

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At 9:01, Judge Pohl takes the bench, authority-emanating robes and all.  All parties are present, including the five accused.  Prosecutor Robert Swann notes the continued presence of FBI personnel and an NYPD officer, who might eventually serve as witnesses.  KSM lawyer David Nevin rises, in order to preserve his objection to those persons ever taking the stand.

Our first (and, as we’ll soon discover, only) order of business is AE133, and who can hear what, of the defense’s confidential conversations with their clients.

But Nevin says he needs more time to investigate that issue.   The logistics of GTMO travel have thwarted him so far; defense travel arrangements had been made well before the monitoring issue had come to light.  Afterwards, Nevin and company departed GTMO, only to return this past weekend.  The attorneys thus haven’t had the opportunity to look into the facts surrounding monitoring just yet—though two government witnesses, CAPT Welsh and COL Bogdan, apparently will be available today.  But Nevin hasn’t yet interviewed them, on account of another investigation last night (though he notes that two of the other defense teams have done so).  He’s at a bit of a disadvantage, for purposes of AE133—in particular, his ability to respond to the government’s written submission.  He asks for a complete abatement of the proceedings, until AE133 is resolved

Weird, observes Judge Pohl:  You filed an emergency, expedited motion, and now ask to stop the proceedings entirely?   Do you have any evidence of monitoring of privileged conversations?  Indeed Nevin says he does.  But this motion derives also from the defense’s reasonable fear of eavesdropping.  Judge Pohl pushes back:  This whole thing started when the OCA cut the feed of the proceedings, but that only has to do with monitoring something that’s already broadcast to the public (i.e., Fort Meade).  What does it have to do with monitoring of attorney-client communications? What is the basis for the defense’s “reasonable belief” that communications are being monitored—and why should we stop everything to investigate?  How long would you need to investigate, anyway?

Nevin wants 24 hours from the time he’s able to conduct interviews with witnesses relevant to the monitoring issue.  His position is based on the facts that (1) an OCA is monitoring the proceedings, combined with (2) that the microphones can pick up what’s being said in court.  Judge Pohl asks whether Nevin truly is surprised to learn that intelligence stakeholders are monitoring a hearing that is already transmitted to places like Fort Meade.  Nevin concedes that, no, that’s not really such a shock.  But he reiterates:  If someone had the ability to hit the “kill switch,” then that person must be listening to communications before they go out to the public on the 40-second delay.  At any rate, the defense lawyers meet with clients in places that are “owned” by intelligence operatives.  The “kill switch” incident, he seems to say, triggered broader suspicion on the defense’s part.  Because of it, the defense lawyers cannot accept the government’s claim that it isn’t listening to privileged communications.

Their colloquy proceeds in circular fashion.  Nevin underscores again that defense lawyers must have confidence that they’re not being monitored. And since the defense isn’t prepared to address those issues fully today—due to the logistical issues mentioned above—-it must have additional time to investigate. This goes to the core of the trial’s structure, he says; and the ethical rules would prevent him from going forward, absent assurances that attorney-client communications will remain confidential. Ok, Judge Pohl says, but can you seriously investigate all that by 9 a.m. tomorrow?  Nevin says he wants 24 hours, starting after he’s had a chance to interview the witnesses. Read more »

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We’re back, and the parties jointly request a discussion of AE56—the government’s request for oral depositions.

Regarding those, the dates the government proposed earlier are no longer feasible, for operational security reasons that prosecutor Anthony Mattivi says he cannot describe in open court.  But the government nevertheless will submit substitute dates shortly, and thus asks the court to postpone its consideration of AE56 in the meantime.    For his part, Judge Pohl will need to de-conflict his own schedule, in order to make this proposal work—but it appears that he will.  He adds that the court has responsibilities and commitments beyond the two Guantanamo capital cases.

Reyes notes outstanding objections on AE56.  When the time comes to address them, he’ll do so.  But since we’re not deciding the depositions issue now—this is about timing—he sits down again, quickly.  Then Kammen stands and notes that the parties may need to return to court this week, for reasons that are unclear—though it seems clear enough that the lawyer is concerned with al-Nashiri’s treatment, both past and present.  There’s more vague procedural chatter, about how to proceed.  Mattivi: should the defense wish to litigate more matters in court, then by all means, have at it.  All parties will be on the island for two more days.  And there are plenty of motions the prosecutors wish to address.

But it looks like we won’t get to any more motions: the parties will now proceed to an 802 session, which will commence at 16:00.  That brings our proceedings—and the week’s hearing–to a close.  We’re in recess.

[This post was updated at 3:45]

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The commission is called to order, with all parties present—including the accused.  The witness, Dr. Iacopino, also is “here,” albeit only virtually: he appears today by video teleconference (“VTC”), which will also be broadcasted to us here in Fort Meade.

Before the good doctor testifies, defense lawyer Lt. Cdr. Stephen Reyes raises an issue of his own: an incident during transport.  The accused elected to attend today, says Reyes—but en route to the ELC, al-Nashiri’s wrists were injured, apparently by handcuffs.  The defense wants to get to the bottom of what happened, and in particular, to obtain documentation of the incident underlying the injury.  No objection from the prosecutors; Reyes’ request is granted.

Dr. Vincent James Iacopino swears to tell the whole truth and nothing but, standing in what appears to be his office’s conference room.

One of al-Nashiri’s lawyers, Rick Kammen, examines Iacopino.  The doctor has a specialty in internal medicine; he works full time with Physicians for Human Rights (“PHR”).  And he’s got chops: undergrad at Villanova, medical and doctoral degrees from Georgetown, residencies in the United States and abroad, and a postdoctoral fellowship at Stanford.  He teaches at Berkeley, and the University of Minnesota’s medical school.   Kammen turns to Iacopino’s affiliation.  Physicians for Human Rights (“PHR), Iacopino says, aims to document human rights violations, and calls on health professionals to carry out that mission.  Importantly, PHR filed an amicus brief in Al Nashiri v. MacDonald, regarding the accused’s treatment.     Read more »

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This afternoon, we continue with a second day of almost-live, CCTV-broadcasted hearings in the military commission case of United States v. Al-Nashiri.  As always, Lawfare is in the house—Fort Meade’s Smallwood Hall, that is, where your correspondent follows the action piped in from Guantanamo’s Expeditionary Legal Center.  (Ben’s reporting, on yesterday’s session, can be found here.)

We expect a rapping of the gavel at 1 p.m.  And the day’s docket looks to be light: it seems we’ll hear only from a single defense witness, Dr. Iacopino, who will testify about issues surrounding the government’s proposed inquiry into al-Nashiri’s competency (AE140).  Thereafter—according to recent bench rulings by the court—the case could be abated, pending the competency issue’s resolution.

But however the afternoon unfolds, your Lawfare format remains the same: posts in the “Events Coverage” section, with handy-dandy links to those posts below, too.

Rig for resplendent robes and expert testimony, shortly.

2/5 Al-Nashiri Hearing #1: Dr. Iacopino, I Presume

2/5 Al-Nashiri Hearing #2: De-Conflicting Dates

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Judge Pohl is now ready to rule.

As to Dr. Crosby, he says, the limitations placed on her by JTF-GTMO, to the extent they conflict with her best professional judgment, are unreasonable. The Convening Authority appointed her. She has to be able to do her job. The defense motion is granted.

Judge Pohl deems Dr. Iacopino’s testimony relevant and says it will be heard.

He defers the matter of Nashiri’s new colloquies as to past hearings until after the government’s requested 706 board on competency is done.

He grants the 706 motion, and he declares that the proceedings will stop until it’s done. The order, however, will not go out until the commission has heard from Dr. Iacopino later this week.

Mattivi now rises and proposes that perhaps the commission doesn’t need to halt after all. Rule 909, he argues, suggests that the trial can proceed unless it’s shown by a preponderance of the evidence that the accused is not competent. This produces something of a discussion, and Judge Pohl takes a 15 minute break to consider it, but he returns and declares that he’s going to halt the proceedings in any event.

So here’s the state of things: We’ll hear from Dr. Iacopino tomorrow, and then the case goes into hibernation—just as the defense asked for at the beginning of the day over vigorous prosecution objection. Only it does so on the prosecution’s motion, and over the defense’s objection.

Who knew?

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We’re back—live (sort of) from Guantanamo (sort of). It’s Monday at Fort Meade, and that means it’s time to open a multi-day motions hearing in the Nashiri military commission. You remember Abd al Rahim Hussayn Muhammad al-Nashiri, right? He’s the alleged Cole bombing mastermind on trial in the other major military commission case going on these days at Guantanamo. Wells and I (mostly Wells) will be covering the hearing all week—motion by motion—on our Events Coverage page. Each day, a post listing each of the detailed entries will remain at the top of Lawfare‘s main feed while the hearing is running. So stay tuned.

Resplendent in Robes Time is 9:00 am.

2/4 Al-Nashiri Hearing #1: Microphones, Monitoring, an Angry Judge, and a Recess

2/4 Al-Nashiri Hearing #2: More Mics, More Monitoring

2/4 Al-Nashiri Hearing #3: Retroactive Colloquies Over the Right Not to Show Up? 

2/4 Nashiri Hearing #4: Wherein We Turn to Nashiri’s Competence

2/4 Nashiri Hearing #5: A Skirmish Over the Good Doctor Iacopino

2/4 Nashiri Hearing #6: A Medical Examination with Shackles, Guards, or Neither?

2/4 Nashiri Hearing #7: Some Rulings—and An Inversion

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The last motion of the day is AO135, a defense motion to allow a doctor named Sondra Crosby to do an examination of Nashiri without either guards present or the patient shackled. Reyes explains that she’s been retained to conduct a physical examination of Nashiri to discern the effects of his torture. But JTF-GTMO wants her to do the examination while Nashiri is restrained—or, in the alternative, with three guards present. She just can’t do that, he says, consistent with her professional judgment.

So you want a private, unshackled exam with no guards present, asks the Judge? Yep.

Is Dr. Crosby willing to sign a waiver? Yep

Is she willing to be observed by video (but not audio)? Yep.

And with guards outside of the chamber? Yep.

Maj. Chris Ruge—a new face for the prosecution—argues that the judge should defer to reasonable security arrangements by the facility commander. They’ve already made such an arrangement. And the defense is not asking for a little more. They’re asking for him to turn this into something the facility commander considers a completely unacceptable risk. He’s not just responsible for Dr. Crosby’s safety, but for the accused’s safety, and the guards’ safety.

Judge Pohl responds that this witness was approved by the Convening Authority and that in the witness’s professional opinion, these are the conditions she needs to conduct the examination. She’s the only person at risk, he notes.

Ruge responds that he very much disagrees that she’s the only one at risk. And the fact that she’s been appointed as an expert to do the examination doesn’t mean reasonable limits can’t be placed on her performance of that function. She couldn’t say, for example, that she needs to do this in a meadow. There have to be reasonable limits. And in this case, the commander has looked at the risks and found what she proposes inherently unsafe. She’s elevating her privacy and the detainee’s over all else, he argues, and that’s not consistent with the case law.

Reyes responds that this is not an issue about privacy. It’s an issue about retraumatization. Dr. Crosby can’t conduct her exam in the manner JTF-GTMO proposes without causing retraumatization. This government held a gun to Nashiri’s head while he was naked and shackled. Dr. Crosby’s examination is inherently invasive. Nashiri may have to be unclothed. Do we really want to it while he’s shackled too? She just can’t do it without causing retraumatization. She’s done this numerous times in the past at Guantanamo without shackling the detainee.

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Break is over and Judge Pohl clearly hopes to resolve a group of motions before day’s end. The trouble is that these motions are all connected in a weird kind of string and he can’t resolve one without taking on a sequence of others. The absence from court issue took him to competency. And competency has taken him to AO140C, the defense motion to hear from torture victim expert, Vincent Iacopino.

Kammen declares that he wants the commission to order Iacopino’s testimony with respect to the 706 motion at least on the parameters of the evaluation and what the commission should do to make sure that the evaluation does Nashiri no harm.

Asks Judge Pohl, what does Iacopino add to the 706 motion? Isn’t it just his personal opinion about how the 706 board should be conducted?

Yes, Kammen acknowledges, and in this unique situation of a victim of torture on trial by the government who tortured him, that should be welcomed.

But aren’t questions of what the board should look into more appropriate for the people to consider who conduct the board, Judge Pohl asks? I’m not a doctor, after all.

The fundamental starting point, Kammen says, is to hear what Iacopino has to say. If you believe it has merit, it may affect your sense of the composition of the board, what it should look like, and what it should do. Another reason to hear from Dr. Iacopino is to help make sure to do no harm to a traumatized person who is being examined by other doctors.

Mattivi offers a brief response. First, he says, the defense argument about Dr. Iacopino is quite limited. There is only one paragraph about Dr. Iacopino—and that’s about the Istanbul Protocol. This is the fourth motion in which the defense has tried to bring the Istanbul Protocol into play. I respectfully request that Judge Pohl take a look at this document. It’s not relevant for the purposes for which it has been offered by defense. The document is about producing effective documentation so that perpetrators of torture can be held accountable. That is a completely different proceeding from what is happening here.

Judge Pohl asks Kammen to respond: what is unique about Dr. Iacopino? Why is he any different from the doctors likely to be appointed to the board—all of whom have sworn a hippocratic oath to do no harm too. Dr. Iacopino has examined a large number of people who have been tortured, here and elsewhere, Kammen says. He knows what will do harm in the future in the context of an examination. He knows how to avoid being a bull in a china shop with a patient who has been traumatized. But, Judge Pohl wants to know, is having Dr. Iacopino provide advice through me to the board an efficient way of conveying his expertise to other doctors? Responds Kammen, we’re asking you to hear from him and if you think it appropriate, craft an order influencing the way the 706 board conducts its business.

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Next stop is AO140, the government’s motion for a competency board to examine Nashiri as a consequence of his previous colloquies with Judge Pohl.

CDR Andrea Lockhart explains that under Rule 706, such an inquiry is appropriate whenever any party comes to question the ability of the defendant to participate in his defense. The prosecution has come to have questions on this score, first, because the defense has asserted that Nashiri suffers from long-term post-traumatic stress disorder. Moreover, when he did a colloquy with Judge Pohl earlier, Nashiri made statements that gave the government concerns about alleged threats against him in detention—threats the government believes are fantasies.

A 706 inquiry, Lockhart stresses, is done by a neutral body of board-certified doctors. This board does not work for the prosecution or the defense, and its results do not get disclosed—except in summary—to the prosecution, which cannot use it except in rebuttal of defense attempts to do so. She and Judge Pohl have a lengthy exchange about the nature of the board, in which she objects to all defense efforts to influence the nature, mandate, and composition of the board. How long will this process take, Judge Pohl asks? After the court’s order, she responds, about three to four weeks. She notes that a request for a 706 inquiry will normally be granted unless frivolous or not made in good faith.

Kammen responds that this issue arose because Nashiri made statements that the government doesn’t believe are true about his treatment. Since they don’t believe the statements are true, the prosecutors are asking for the 706 board. But that brings up the need for discovery. Because if the statements are true, that would belie their request for 706 evaluation.

The evaluation is unnecessary, he says, because there’s no question of Nashiri’s competency for trial or of his mental state at the time of the office. Yes, we say he has long-term PTSD. But so what? We don’t claim that at the time of the offense, there were any mental health issues. And we have never suggested that in terms of the very minimal requirements for competency, Nashiri is not competent. Judge Pohl reminds him that under military practice, either side can request a 706 board. Yes, Kammen says, but I don’t know of anything about Nashiri’s statements that would give anyone a reasonable suggestion that he’s not competent to stand trial. So if we don’t allege insanity and we don’t allege incompetence, and based only a statement on his part that might be true, that’s not really a good faith basis to look into his competence.

But what’s the problem, Pohl wants to know? You get the full report to do with what you like. The prosecution gets a one page summary. So if it helps your case, you use it, and if it doesn’t, you don’t. Kammen responds that he doesn’t trust the Convening Authority not to appoint hacks. And what if the document then becomes discoverable? This suggestion produces an exchange with Lockhart in which Judge Pohl tries to clarify the circumstances under which the report might become discoverable. They agree, in essence, that—as Judge Pohl puts it—the defense holds the keys to the report.

Kammen expresses one more concern—that the examination might interfere with the examination by his own experts—but the writing is on the wall that Judge Pohl is going to grant the government’s request. And besides, the whole thing does look like a pretty good deal for Kammen. Especially because, as he points out, the defense’s understanding is that the proceedings stop while the 706 review is under way. And the defense has just spent the entire morning trying to abate the proceedings.

Judge Pohl clarifies with Lockhart that she is not seeking to question Nashiri’s mental responsibility at the time of the offense, merely his competency now. And he clarifies as well that she understands that the proceedings will stop if he orders the review. She does. There’s really only one last thing separating the parties on this. Kammen wants Judge Pohl to hear from a potential witness, Vincent Iacopino, a doctor who works with torture victims, on what the 706 board should focus on and how it should proceed. The government does not. Kammen describes Iacopino as one of world’s leading authorities on victims of torture. He is one of authors of the Istanbul Protocol. He can certainly advise the court, if you’re going to do this, about the qualifications of the people you should appoint, Kammen argues. To give you a guide as to how this should work, he tells Judge Pohl, you should hear from Iacopino first.

Judge Pohl asks Lockhart whether Iacopino’s testimony would be useful. She says it is not relevant. The Istanbul Protocol, she notes, is about ensuring effective documentation for bringing perpetrators of torture to justice. That has nothing to do with a 706 inquiry into Nashiri’s competence to stand trial.

Judge Pohl announces a break before he turns to this question and another involving an expert medical examination.

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We know Judge Pohl wants to hear argument on two motions this afternoon.  Now he tells us which ones: AE99D and AE140. The pair are interrelated, and were both filed by the prosecution.

The government turns first to AE99D.  It deals with whether the court needs to retroactively clarify that al-Nashiri’s absences at some earlier commission hearings were, in fact, knowing and voluntary.

Mattivi argues that the rule regarding the accused’s right to be present—or not—at commission hearings has changed somewhat over the course of the case. Early on, he says, the defendant had to be asked at the outset of each day whether he wanted to attend.  And if he declined, the court did not have to revisit the waiver of presence rights until the following day.  With this as the procedural rubric, al-Nashiri didn’t show up for a few days. Later, however, Judge Pohl decided on a change.  And from that point on, the court would inquire into presence matters twice, both before both morning as well afternoon sessions—rather than doing so only once, in the morning.  The regime’s evolution is the reason for the prosecutor’s presence at the podium.  Mattivi wants to clarify that, on the days in question, al-Nashiri’s absences were voluntary under the waiver procedure’s latest iteration.

Nothing is easy, however, and Reyes doesn’t want to put his client on the record unnecessarily. The last time al-Nashiri had a colloquy with the judge, the lawyer notes, it had negative consequences for al-Nashiri.  Indeed, his in-court response triggered today’s government request for an inquiry into al-Nashiri’s competency. What’s more, the government has not put forth any reason to believe that al-Nashiri’s earlier absences were other than voluntary.  Thus, there’s no real issue here to resolve.  And if not, then there’s no need for a on the record chat between court and accused, either.  Read more »

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It’s 1:00 pm and we’re back.

Addressing a defense claim from earlier, Judge Pohl makes clear for the record that he would never require defense attorneys to violate applicable rules of professional responsibility.  But, he stresses, the defense must have a factual basis for its claim; or, absent any evidence of a threat to attorney-client communications, a written opinion suggesting some sort of ethical problem.

Defense lawyer Richard Kammen rises and says he did some research into the relevant disciplinary rules in his home state of Indiana. And the response brought him to two conflicting places. First, he feels an obligation to get more information about potential monitoring. Second, and completely opposite, Indiana law seemed to suggest that he needs to withdraw from the case. He doesn’t want to go there. But at a minimum, Kammen needs to uncover more about who can hear what.

Judge Pohl cuts him off. Is there any—even a scintilla—of evidence that there’s been any monitoring of attorney-client communications? Yes, Kammen says. Some of it we learned during the recess.

The court asks him to explain.

With the help of the prosecution, the defense attorney says, we interviewed two individuals familiar with our courtroom’s technology. And basically, the courtroom is a huge listening device. At each table there are three extraordinarily sensitive microphones. We ran a test, Kammen says, and someone back at the second table and whispering could be heard on microphones located far away. A second problem is that even when a microphone is muted, voices can still be detected by other microphones. What’s more, if defense lawyers screw up and client conversations get picked up, the overheard material is saved to disk for transcription purposes. Sure, the court reporter might ignore it, but the supposedly confidential stuff would still be on the disk. And unlike in other courts, the transcript here is owned by the prosecution. Read more »

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It’s 9:01 am, and Military Judge James Pohl enters the courtroom, resplendent in his black robes, judicial authority emanating from his very being.

The first order of business is AE149, which the defense filed on Friday in response to last week’s revelation in the 9/11 case that someone outside the commission system had the ability to interrupt the commission’s video and audio feed. The prosecution has not yet responded to this motion, and Judge Pohl asks the prosecution whether it is prepared to argue the motion anyway. Trial counsel Anthony Mattivi says the government will want to be heard on this matter.

Defense attorney Lt. Cdr. Stephen Reyes takes the podium and argues that until we find out the extent of monitoring and listening by the third party—which everyone understands to be the CIA—confidential communications with his client is impossible, and the proceedings should not continue. We are surrounded by microphones, he says, and we don’t know what organization is doing the listening. If it is the CIA, it is the same organization that detained and tortured al-Nashiri. It is the same organization that lied to a federal court about destroying the interrogation tapes.

Judge Pohl says it doesn’t make any difference whether an outside party is listening to the official proceedings, since the proceedings are public and being broadcast to lots of third parties. It’s a different matter if they are listening to attorney-client communications. But what, he asks, is the evidence of that? Reyes says there are a bunch of microphones around the courtroom that have the ability to home in on and listen to what is happening at counsel table. Last week, he says, we found out that there is a man behind the curtain. We have an ethical obligation not to ignore that man behind the curtain. The censorship last week—of which, he pointedly notes, Judge Pohl was previously unaware—raises the specter of third party monitoring of the proceedings, and we have to find out the extent of that monitoring.

Judge Pohl, over Reyes’s objection, takes judicial notice of the fact that the statement that triggered the event last week was a statement of defense counsel from the podium, not at the defense table. Monitoring of official proceedings, he says, doesn’t suggest that there’s monitoring of statements outside of the proceedings themselves. What remedy do you want here, he asks? Reyes responds that he wants an individual to come in and testify about the extent of listening at counsel table and in the holding cells. Our remedy is to hold off on these proceedings until we feel comfortable that we understand the scope of what is happening. Judge Pohl notes that this is all based on speculation—no facts, and no evidence. Reyes and he disagree at some length about what last week’s incident suggests about listening in the courtroom. All we’re asking for, Reyes says, is an opportunity to ask these questions. If we do not get it, we will not be able to proceed effectively; we will not be able to talk to the client about any motion.

Mattivi responds that Reyes has raised three issues that need to be addressed. First, he argues, the defense is conflating the ability to interrupt the feed from the courtroom with the monitoring of defense communications. There has been no example of the feed being interrupted in this case, he argues, though that did happen in a separate case. But we have always kept these two cases separate, he argues, and we should do so here. Judge Pohl asks whether the third party’s ability to cut the feed been interrupted in this case, as well as in the 9/11 case, and Mattivi says that his understanding is that it has. Second, Mattivi says, there is no evidence of recording or monitoring of defense communications, and the defense is trying to shift the burden of proof in this motion to the prosecution. The defense has offered no factual representation whatsoever to support this motion yet wants us to prove that something didn’t happen.

Third, despite the fact that we don’t have the burden, Mattivi argues, we came a day early and ran this to ground. And we asked people whether the defense had talked to them, and they said no. Judge Pohl asks what sort of people he talked to, and Mattivi says he spoke to the technical people who run the courtroom. Mattivi says he was able to find no evidence of monitoring. He asks that Judge Pohl summarily deny the motion and let the hearing proceed.

Reyes responds that Mattivi’s statement shows there are serious unanswered questions, but Judge Pohl wants to talk about the burden of proof. He and Reyes get into an extended exchange about what last week’s events really indicate—but they are really going around in circles. Judge Pohl, with Mattivi, clearly believes that the fact of monitoring the official feed—and having the ability to cut it off—suggests nothing about eavesdropping on defense communications. Reyes, by contrast, considers last week’s revelation as establishing monitoring and requiring an investigation into the extent of that monitoring—and considers the defense impaired until that investigation takes place.

In a quick response, Mattivi makes four claims. The defense has an obligation to put forth at least a modicum of information in support of its motion. While we don’t have the burden, he says, we did an investigation and eavesdropping is not happening. The mute buttons on the microphones actually work. And the allegation that the government is hiding the hand of third party agency from the court is silly. The rules of the military commission trial judiciary actually contemplate intelligence community involvement by creating a position to manage the relationship with intelligence components.

Reyes then quickly reiterates his points and Judge Pohl rules.

Judge Pohl says he assumes without ruling that the facts proffered by the defense are true. The motion to abate the proceedings, however, is denied because no facts proffered even suggest a threat to defense communications. The incident of last week, he rules, had nothing to do with attorney-client communications. Yes, there microphones in the courtroom and the ability to eavesdrop, but that does not mean eavesdropping is happening. That said, Judge Pohl says, he understands the defense’s concerns, and he directs the government to cooperate with reasonable discovery requests on this issue.

He is ready to move on to AE99 and AE140.

Reyes, however, is not. He requests a recess to discuss the matter with trial counsel—and to seek guidance from advisory counsel on the ethical implications of proceeding with the case.

Judge Pohl is incredulous. Are you saying you need a recess to decide whether you can sua sponte abate the proceedings when I have just denied your motion to abate, he asks? Reyes says he is just asking for a moment to seek advice on the proper course. Can’t you figure that out yourself, Judge Pohl asks? You are an experienced lawyer, and you have learned counsel. It’s your job to be able to adjust to rulings in court. Reyes says he needs to consult with ethics counsel. We see a tremendous ethical issue here, he says, and there’s the possibility of bar discipline if we step wrong.

Judge Pohl is clearly angry, but he says he will give Reyes some time. How much time do you need? Reyes asks for a recess until after lunch—1:00 pm?

Now Judge Pohl is really angry, and the press corp at Fort Meade is egging him on—shouting at the screen for him to turn Reyes down. Nobody relishes an additional three hours with nothing to do at Smallwood Hall, much though this place has become all of our home away from home.

But to groans from the press, Judge Pohl gives Reyes his three hours—with a bit of a lecture. This is a one-time deal, he says. It’s a very unusual request, and it’s not going to be routine practice in my court that when you lose a motion you get a recess to regroup. You have to be prepared for when rulings go your way and when they don’t.

And with that, we’re in recess.

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Nevin at the podium.   He wishes to make sure that Judge Pohl’s earlier ruling, regarding the cutting of the audio and video feed, takes effect immediately as announced.  The court makes clear that no third party can cut the broadcast now—even though it remains physically to disconnect the offending censorship equipment, whatever it may be. That might take some time—but won’t require suspension of today’s proceedings.

On to AE40, Walid bin Attash’s motion to compel the production of witnesses.  The Convening Authority will be produced, per the court’s earlier order; that leaves only one witness, Col. Torres.

Or not.  One of bin Attash’s attorneys, Cheryl Bormann, returns to a recurring defense theme.  It cannot constitutionally be required to provide prior notice of its sought witness’s planned testimony, or, more broadly, to ask for prosecution sign-off on a given witness’s production.   The lawyer also reminds the court of its earlier ruling on Rule 703—or, really, its oral preview earlier this week, the written version having not come down just yet.  The opportunity to obtain witnesses here, she argues, must be comparable to the defendant’s opportunity to do so in an Article III court.  But it isn’t, among other things because of the court’s oral ruling—which still generally insists on prior notice to prosecutors, whenever the defense wants to compel the production of witnesses.  Of course, there is the possibility of an ex parte request to the court, provided the circumstances are sufficiently “exceptional.” What does that mean?  Bormann doesn’t know, and thus also doesn’t know whether, and how, she should supplement AE40 so as to conform to the court’s oral ruling.  Which is to say: she’s not ready to argue any motions to compel now.  She adds that the lack of preparation isn’t her fault—how could the defense divine what Rule 703 meant, or didn’t mean, in advance?  She thus disputes any suggestion by the court or prosecution that the slow pace can be attributed to her or her colleagues.

An attorney for Mustafa al-Hawsawi, CDR Walter Ruiz, seeks clarity about the motions that remain for argument today.  The defense recently withdrew some filings, but the withdrawals are not yet noted on the docket.  Confusion: what motions, and witnesses, do we still need to talk about?   Which ones have and haven’t been decided?  Read more »

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The recess concludes, and Judge Pohl takes the bench. First are a few remarks about logistics, including the use of demonstratives and multimedia.  (J. Connell III, we’re looking at you.)  The rule: no such items allowed, unless submitted at least 24 hours in advance of their use in the courtroom.  It’s a tricky thing, because slides and screen displays must be reviewed for security reasons, and defense counsel aren’t clear about who or what is responsible for security reviews these days.

Now to Nevin’s motion, which prosecutors received only at 8:59 this morning—fifteen seconds prior to 9:00, notes Brig. Gen. Martins.  That didn’t leave much time to review.  The court, speaking aloud, balances one party’s right to respond with the other’s right to seek emergency relief when warranted.  For his part, the Chief Prosecutor asks for orderly motions practice.  But the court seemingly wants the attorney-client issue resolved before proceeding further.  The urgency prompts Martins to propose a compromise: his side can respond as early as COB Thursday, he says.  Judge Pohl says that simply labeling a motion “emergency” is in no way talismanic; he’s concerned instead about the substance of Nevin’s request, which indeed has an urgent quality to it.  The lawyer wants to stop inappropriate snooping on his confidential discussions in the courtroom.

We pause, while the lawyers talk amongst themselves—a “recess in place,” as Judge Pohl calls it.

Back to the Chief Prosecutor, who has conferred with his colleagues.   He says for the record, as an officer of the court: there’s no technological reason to abate proceedings today, as the accused are not in the courtroom.  Thus Martins urges the court not to act precipitously, by suspending proceedings now.  And the government will, as the Chief Prosecutor committed earlier, respond to Nevin’s motion by Thursday evening.  The court, working out this improvised calendar, sets the defense’s reply deadline for Sunday evening.  He adds that the accused must be in the courtroom when the motion finally is argued, on February 11.

David Nevin isn’t satisfied.  He wants the monitoring issue resolved conclusively, and not on the basis of an assurance that confidential chats—not just those between counsel and client, but also those between defense lawyers only—won’t be overheard.  Judge Pohl overrules this objection.  Given the accuseds’ absences, and the Chief Prosecutor’s representation about courtroom technology, we’ll proceed with litigation today.

Speaking of litigation, the Convening Authority, Adm. Bruce MacDonald, will indeed be produced as a witness during our next session.  The court thinks his testimony potentially relevant to, among other things, the defense’s motion to dismiss for unlawful influence, AE31.  (The defense seeks his testimony in respect of other requests, too—one, a motion to dismiss the case for defective referral, AE008.)  Thus Judge Pohl orally grants an already-argued-but-still-pending defense request (AE47) to produce MacDonald, live and in person, at our next meeting.   Prosecutor Jeffrey Groharing hopes the court will reconsider.  He thinks MacDonald’s affidavit—which firmly establishes that the Convening Authority wasn’t improperly influenced—disposes of the need for any live testimony, and indeed of the entire dispute.   At the same time, the accused hasn’t put up any legal or factual basis for producing MacDonald to begin with, even though the defense bears the burden of doing just that.  Finally, despite the court’s invitation to do so, defense lawyers haven’t even attempted to speak to MacDonald about the case’s referral phase.   The prosecutor’s pleas are in vain.  For the court, the case’s significance, and the prospect  (however remote) of outside influence, warrants a full factual examination.  Judge Pohl thus understands Groharing’s view—but rejects it.

The Chief Prosecutor stands again, seeking to minimize the interim abatement of proceedings—that occasioned simply by briefing and consideration of Nevin’s motion.  Apparently, it calls for the production of three witnesses, whose testimony must be summarized in advance.  The defense will do so, and the prosecution respond, on an expedited basis.  Thereafter the court will resolve the witness question immediately, without the benefit of oral argument.  Can the parties live with that arrangement, asks Judge Pohl.  Indeed they can.

We’re in recess.  Motions to compel are up next.

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We return to the ELC courtroom, where prosecutors and defense counsel all are present.  The five accused are absent.

Prosecutor Robert Swann is first at the podium; his witness is MAJ Griffin—who testified earlier as to the voluntary, knowing absences of the accused.  Did all five receive the advice of rights this time around?  Did they sign written waivers?  Did they understand the potential consequences of skipping out?  Yes, yes, and yes.  J. Connell III, lawyer for Ammar al-Baluchi, asks about the tone of Griffin’s conversation with his client about voluntariness.  It was cordial, the witness says.

There’s some more housekeeping talk: the accused won’t have to be present for the first day of our upcoming February session, in order to refresh their waivers.  But Judge Pohl will require the accused to return to the courtroom for the first day of an April session.  The Chief Prosecutor rises and, unsurprisingly, asks the court to remain vigilant about policing the waiver of presence rights.  He urges Judge Pohl to review the Mitchell case in particular—which said that every presumption should be indulged against waiver.   As always, the un-barking dog here, legally, is possible appellate or post-conviction litigation on unknowing or involuntary absences from pretrial sessions. So much for voluntariness.

Now David Nevin has an emergency motion—to abate proceedings entirely, until the parties and the court can sort out, definitively, who is listening in; the eavesdroppers’ powers to censor the courtroom’s audio and video feed; and the extent of the intrusions into any attorney-client discussions.  As before, the lawyer emphasizes minimal rules of professional conduct, that apply universally.  Defense counsel can’t ethically represent the accused, he argues, if indeed their every word is monitored in Judge Pohl’s courtroom.   Judge Pohl will review Nevin’s motion after a recess (the lawyer having filed it by hand, rather than electronically, given the circumstances).   Read more »

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AE50, our day’s last, is James Connell III’s request to compel the production of three witnesses.

The first is Robin Maher, an attorney who helped to develop the ABA’s guidelines on capital cases—a legal authority of obvious relevance, but of disputed persuasive value here.  When pressed, Connell says Maher, if produced, won’t simply hold forth about what’s good or bad about the guidelines: she can talk instead about facts surrounding their generation.  He adds that Maher has testified in a wide variety of death penalty cases, and can do so in this case by videoconference.  Her input is directly relevant to AE008, a motion to dismiss for defective referral.   One such defect is that, in the case’s referral phase, the regulation governing the assignment of Learned Counsel was violated: among other things, the written communications policies then in play precluded defense lawyers from adequately representing their clients, in accordance with the guidelines (and thus, the regulation to boot).   Ms. Maher, says Connell, will supply context for the guidelines’ minimum standards for representation.

Witness two is Larry Fox.  He’s a law professor at Yale with a concentration in ethics.  In short, Fox’s report apparently (it’s not quite clear) concluded that defense counsel could not ethically represent their clients under these circumstances.   Wait: a written report?  Judge Pohl asks why that can’t be submitted.  Pause.  The light goes on. He’s an expert witness—but Connell had treated him as a fact witness, and crafted his arguments in light of that assumption.  Likewise for Maher, now that it occurs to Connell.  So much for these two—who we’ll treat as expert witnesses going forward.

The final would-be witness—an unnamed one—administers the SCI briefing room.  His testimony bears on the stubborn vestiges of “presumptive classification.” Unfortunately, the case’s SCI agreement still retains some language about detainees’ statements being “presumptively classified.”  This, notwithstanding the entry of a protective order that did away with the derided presumptive classification approach.  The witness’s production could be mooted of course, if the government agrees to excise “presumptive classification” language from the SCI agreement.  The court thus punts: Connell can ask for the third witness later, if indeed “presumptive classification” doesn’t go away on its own, through government stipulation.  Read more »

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MAJ Sterling Thomas, on behalf of Ammar al-Baluchi, argues AE93—in which Thomas and James Connell III ask the court to grant their client a brief, audiovisual communication.  Ammar al-Baluchi desires to call relatives abroad, in order to send condolences for the death of his father in 2012.  Similar calls have been arranged in the past, through a system established by the United States and monitored by the International Committee of the Red Cross.  Thomas also notes that Guantanamo’s high value detainees, such as his client, are subject to procedures akin to Special Administrative Measures—“SAMs,” in Bureau of Prisons parlance.  These may limit correspondence, media visits, and so forth. SAMs, of course, are subject to administrative review.

But here’s the kicker: there is no administrative mechanism in play here.  Had one existed, al-Baluchi would have invoked it.  The detainee asked JTF-GTMO last year for permission to place his desired phone call.  To date, though—three months after the request—the word from on high is that JTF-GTMO is processing the request.  The technical capability is there; and the security capability is there—thus, Thomas asks AE93 to be granted, on the unfortunate occasion of the death of al-Baluchi’s father. Judge Pohl: in your brief, MAJ Thomas, you’ve cited no basis for more stepping into this issue, right?  Where does my authority come from?  Thomas emphasizes the court’s authority over matters in the courtroom—including the telephone call matter brought to him today.  There’s a slippery slope problem here, Judge Pohl suggests. Thomas’ example concerns an Article III court, but this is an Article I court.

Prosecutor Clay Trivett stands, and explains the lack of a government response: prosecutors never filed one at the time of filing, given the urgent nature of the request.  And they’d thought the telephone call had been resolved, as so much time had passed in the meantime.  In any case, the government has nothing to add. Trivett sits.

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AE55 is up next.  In it, the defense jointly seeks the release of redacted versions of pleadings containing classified materials.

J. Connell III, lawyer for Ammar al-Baluchi, argues in support of the motion, citing RTMC 19-4—which calls for public release of redacted documents, after DoD security has completed its usually-but-not-always fifteen day security review.  “Not always:” Connell refers to a slide, illustrating, first, the universe of pleadings that have been filed but not yet released in redacted form; and, second, the time elapsed since the pleadings’ filing.  There’s a good range.  One paper has been undergoing security review for 172 days.  And that’s just not good enough, given the transparency issues at stake—though Connell emphasizes that he’s not just complaining about bureaucracy’s slow pace.  It’s one thing to grind slowly, but quite another to grind utterly and completely to a halt.  The issue is not merely one of paperwork, says Connell.  The public has First Amendment rights of access, and the accused’s rights are also burdened by secrecy rules—notice and so on—which relax just as soon as a redacted pleading officially has been released to the world.  He sits.

Walid bin Attash’s new lawyer, LCDR James Hatcher, stands.  He emphasizes his pride: he is proud of being a defense lawyer in the American justice system.  Part of that system, as he’s explained to juries, is transparency—it is of paramount importance.  The Executive Order cited in defense papers, Hatcher argues, talks about the commitment to open government, through (among other things) the accurate application of classification rules.  And remember mc.mil, the commissions’ website?  The motto is “fairness, transparency, justice.”  You couldn’t blame a cynic for—given the security review lag—for thinking it mere window dressing.  The delay in processing builds delays, he says.

There isn’t much daylight between the prosecutors and defense here, says LT Kiersten Korcynzksi.  She observes that not all pleadings are subject to the regulation under discussion here—completely classified ones.   Judge Pohl agrees, but says that’s beside the point; the issue here is unclassified filings, which contained classified information and which thus needed redaction.  The regulation is straightforward, he says.  Why haven’t these pleadings been redacted? Or, more importantly, why can’t it be done in the future?  The prosecutor recommends the filing of unclassified pleadings—which might contain classified information—in camera, and under seal. That’s the by-the-book approach, which the parties haven’t scrupulously observed heretofore.  Documents filed that way get immediate review by the military judge, who may decide that the documents cannot be released under any conditions—all without ever turning the document over to security review, and causing a needless delay.   She adds that the government may choose to note the redaction of a voluminous document on a single page, rather than, say, submitting a 275-page attachment consisting only of blacked-out pages.

Easy ruling for Judge Pohl: he asks everyone to follow the rules.  AE55, to release redacted pleadings, thus is granted, to the extent that the motion calls for compliance with regulations governing the redaction and release of unclassified filings.   Ruiz rises to talk housekeeping about filing procedures, in light of the court’s order.  (He has in mind a motion that may be filed later today.)  With that flagged, we move on—to AE93.

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Ruiz takes a third stab at AE108, first by emphasizing the justification behind his proposal for overnight visits to his client’s detention center: the lawyer needs to determine sleeping patterns, other life patterns, and the like.

Next he notes two attributes of the prosecution’s briefing regarding reports prepared by the International Committee of the Red Cross (“ICRC”): one, its acknowledgment of the broad nature of the mitigation inquiry; and two, the prosecution’s suggestion, nevertheless, that the defense gets less access to the accused than the ICRC gets. For that reason—the ICRC’s historical interviews with and access to the accused—the defense sought discovery of ICRC materials regarding confinement conditions.  Prosecutors can’t have it both ways, he says: on the one hand, the government boasts of providing ample discovery into conditions of confinement; yet on the other, the prosecution also refuses discovery into ICRC materials, citing amorphous “national security” concerns.  The double standard is incompatible with the government’s claimed commitment to transparency.  He adds that, in any case, the prosecution has no standing to invoke non-disclosure privileges on the ICRC’s behalf.

McGovern wants to keep the focus on what the defense wants.  Defense counsel asked for a site visit, and here, the government aims to make one visit possible.  But the defense didn’t mention ICRC materials initially, having filed their ICRC motion while the United States was smack dab in the middle of preparing its initial response regarding the accuseds’ conditions of confinement.  What a moving target, the breadth of these defense requests!  One day, it’s site visits only; the next, it’s ICRC stuff.

The court interrupts: is there any prohibition on turning over ICRC materials?  McGovern says such documents are handled as classified.  But are they actually classified?  The prosecutor acknowledges that the ICRC reports are not classified originally (though, as Judge Pohl notes, classification wouldn’t preclude discovery, but would instead implicate the ordinary rules for producing classified material).  McGovern again stresses the eleventh-hour character of the defense request, and disputes the ICRC documents’ relevance.  He adds that protecting ICRC materials from disclosure is good policy, as discovery could discourage the ICRC from visiting U.S. detainees abroad.  Well, okay says the court: sound policy.  We’re doing law here. Read more »

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Lunch is done.  David Nevin notes the absence of co-counsel, Gary Sowards; prosecutors remind us that all five accused remain voluntarily absent.

We circle back to AE108, regarding the conditions of confinement—and argument in opposition by prosecutor Maj. Robert McGovern.  He touts the many virtues of the government’s proposed approach: site visits?  Check.  Discovery into conditions of confinement (after signing the protective order, of course)?  Check.  In fact, the prosecution will go further than the defense even asks in AE108, which concerns only current conditions; the government plans to disclose information about historical conditions, too.  The prosecutor is also careful to note that, at this time, he has no plan to introduce any confinement evidence, in the United States” aggravation case against the accused.

McGovern objects strenuously to the idea of a defense site visit with the accused present throughout.  Judge Pohl: why must the lawyers’ clients be absent, during the visit? The accused already are detained in the facilities, after all, and it’s their experience that matters.  There’s no need for some “open house,” with lawyers included but their clients not.  The mitigation inquiry usually proceeds without the defendant’s participation, responds McGovern.  Past capital case practice shows that such participation isn’t necessary.  That’s not good enough for the court, who finds McGovern’s argument to be more policy than law.  The prosecutor dissembles, while referring to security prerogatives more generally; he ultimately answers by asking how could the accused’s presence really help the defense? Again, mitigation can go forward with counsel and experts alone. The defense wants a site visit, and they’ll get a site visit. But an accused walking down the hall, chatting with defense counsel while intermittently talking up this or that JTF staffer?  No way.

The court turns to documents prepared during defense counsel’s site visits.  Judge Pohl is visibly not eager to delve into JTF-GTMO policy here—but wants nevertheless to enable the defense’s mitigation investigation.  And he cannot figure out why—as the prosecution’s briefing has suggested—a site visit would trigger security protocols above and beyond those governing other written materials in the case.  Why not just have site sketches and other items submitted for classification review, as is standard fare for other documents?  McGovern stresses the need for additional, JTF-GTMO review, in order to ensure that nothing “inappropriate is conveyed.”  A final question: would a forty-eight hour visit to the facility cause logistical challenges?  Yes, the prosecutor says, there will be such burdens, and security risks, too.  But he cannot say, right now, whether a forty-eight hour session would be impossible.  McGovern reminds the court that only so much time is needed to see a facility and to document it.  There’s no justification for an open-ended defense sleepover.  He closes by doubting the relevance and necessity of that approach. Read more »

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We move now to AE108, a defense effort to inquire into the current conditions of the accuseds’ confinement.  Day-to-day life at the detention center is a subject for LCDR Walter Ruiz, Mustafa al-Hawsawi’s lawyer.  He rises to speak first.

There is broad agreement about the defense’s entitlement to look into confinement conditions.  The parties’ disagreement goes, apparently, to the extent of that entitlement.  How much time will be allotted for access to the detention facility? The prosecution proposes two hours; Ruiz wants at least forty-eight continuous hours, with a two-day counsel visit occurring at least once every six months.  Elaborating, the lawyer says he wants to stay overnight at the facility, too, in order to get a genuine feel for the place.  (Humor: Judge Pohl mishears, believing that Ruiz said he wants to sleep with his client, rather than at the facility where al-Hawsawi is held.)  But what exactly does the lawyer want?  A cot?  Ruiz says he would be comfortable staying in his own cell for the evening, or out in a hallway.

Why stay overnight in the detention center, anyway?  The question comes from Judge Pohl.  For Ruiz, it is all about details.  Take these examples, which seemingly go to mitigation: daily stressors on an accused, the his living habits, detention policies as implemented; and so on. Two hours simply is not enough to uncover even that much.  Ruiz will need much more time, and a mitigation expert to point out especially significant evidence.  He then marches through some more objections, regarding, among other things: prior notice to prosecutors (as opposed to JTF-GTMO staff, seemingly) about visits to the facility; the extent to which defense counsel can speak to his client during visits; and the prosecution’s ability to review any sketches and other materials prepared during overnight stays.  We can glean the main point easily enough.  Ruiz is eager to avoid any intrusions into his attorney-client relationship.  (The lawyer adds that he wants very much to discover ICRC-produced materials regarding al-Hawsawi’s detention—but the prosecution has rejected that.) Read more »

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Let us turn now to 13U—a defense motion to strike the protective order’s “testimonial notice” provision, paragraph 8(a)(1)(b).

It’s an offensive little paragraph, according to al-Baluchi’s lawyer, J. Connell III: the current language calls on the defense to provide the prosecution with prior notice of any statements—classified or unclassified—that the accused will make in the courtroom.  That’s overbroad: classified information is subject to prior notice under the relevant legal authority, Rule 505(g)—but not planned testimony by the accused.  And it’s unfair, too: prosecutors don’t have to provide notice of any unclassified testimony by their witnesses.  The paragraph thus amounts to residual “presumptive classification,” in Connell’s view.  It should be excised from the protective order.

Judge Pohl: but you have no objection to providing prior notice of classified statements by the accused, correct?  Connell: correct. That’s precisely what is required by RMC 505(g), the authority most relevant to this dispute.  The colloquy is improved by another of Connell’s signature slides, this one a Venn diagram explaining the proper coverage of RMC 505, as compared with the staggering breadth of the paragraph 8(a)(1)(b).  The defense attorney then moves to a district court decision, which rejects any requirement of providing prior notice about unclassified statements of the defendant; and then to a side-by-side comparison (rather than a Venn diagram) of Rule 505(g) and the protective order’s current language; and then once more to his theme: prior notice of unclassified testimony by the accused? No, that’s unconstitutional.  But prior notice of the intent to disclose classified information, whether statements by an accused, or a document, or some other item? Yes, absolutely appropriate and required by law.

Some fine-grained legal discussion then follows, about precisely what happens when an unannounced third party witness appears, and testifies to a classified fact about which the defense has provided prior notice pursuant to RMC 505(g).  That poses no problem for the defense lawyer.  Prosecutors can always cross-examine, and nothing—in RMC 505 or in CIPA—obligates him to reveal precisely how the defense will prove classified facts, which Connell must flag in advance.  Connell then identifies a subtle reciprocity problem in the protective order: when the defense provides RMC 505(g) notice, regarding classified material, the prosecution then inherits a reciprocal obligation to disclose any classified rebuttal evidence.  But there’s no such obligation as to unclassified stuff: under the protective order, the defense simply tips its hand as to the defendant’s planned testimony, and the prosecution pockets some strategically useful (and unconstitutionally obtained) strategic help.  Connell then strongly urges a return to the ordinary disclosure scheme, and paragraph 8(a)(1)(b)’s amendment. Read more »

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We come to an expected vignette about yesterday’s brief audio and video blackout.

Judge Pohl explains: the idea behind the forty-second delay is to prevent the disclosure of classified information.  But only the judge has the authority to close the courtroom, he says.  It is not the Court Security Officer’s (“CSO”) decision, or any other person’s.  The court is emphatic about another thing, too: KSM lawyer David Nevin’s remark, which prompted yesterday’s break in the audio and video feed, was not a basis for censorship.  Nevin merely had reiterated the caption of an unclassified appellate exhibit: AE80, on the preservation of black site evidence.  Again, the court underscores, closure is up to me and me alone.

Continuing, he makes a related point about the courtroom’s technical capabilities.  There’s one audio feed at the counsel desk, Judge Pohl says, and another at the bench.  These can be turned off, so as to prevent leakage and overhearing.  But there’s also a feed to the stenographer, used for transcription purposes; its on-off functioning is unclear.  Having identified this equipment, the court directs the government to identify the security official responsible for it, so that the defense can discuss courtroom protocols with him or her.  David Nevin stands and objects to the use of microphones that can’t be turned off, and that might impinge upon the confidentiality of private, attorney-client sidebars.  Ditto Bormann, who emphasizes the need to protect the secrecy of her chats with bin Attash: she cannot provide adequate representation, under the Model Rules of Professional Conduct, if those discussions are piped directly to (or can be so easily overheard by) the prosecution.

As if on cue, the Chief Prosecutor rises in support of transparency.  Given Nevin’s remarks, he says, the excised portion of yesterday’s transcript should be provided to commission stenographers, who prepare the day’s unauthenticated transcript.   (The feed—which was interrupted yesterday, of course—provides the material to the stenographers directly.)  There’s some back-and-forth about precisely who controls the preparation of the unauthenticated document: is it the prosecutor or the court itself?  Cheryl Bormann thinks the latter, and thus returns to her theme of preventing unwanted snooping into her discussions with bin Attash—who, she adds, the government wishes to kill.  James Harrington, lawyer for Ramzi bin al Shibh, echoes Bormann’s concerns—but inches close enough to still-secret themes, so Judge Pohl stops him.   And James Connell notes that he might well plan to call the security officer as a witness at some stage.

Finally, the court forecasts a forthcoming written ruling on AE36, regarding requests for the production of witnesses.  The gist: assuming without deciding the Constitution’s application, the Court believes the relevant legal rule, RMC 703, is not unconstitutional.  It is also not inconsistent with the MCA 2009, either.  As for the witness requests themselves, Judge Pohl says the defense must give prior notice to the prosecution of the relevance of a sought witness’ testimony; such notice must include contact information.  Of course, the defense remains free to seek court assistance—on an adversarial basis, unless extraordinary circumstances warrant an ex parte submission—if the prosecution denies a witness request.

There’s a bit more housekeeping: we’re not likely to hear oral argument on two ex parte requests filed on behalf of Mustafa al-Hawsawi, AE109 and AE110.  And AE84 and AE85, both regarding forced-feeding policies at GTMO, won’t be up for argument either. The defense withdrew the former, and agrees that the latter is moot.

Without prompting, the court concludes with a final secrecy question: the government believes the accused can be excluded from an evidentiary hearing involving classified information, right?  Yes, says Baltes, under certain circumstances pre-trial.   Judge Pohl notes the defense opposition to exclusion as a categorical matter.  How to proceed? The parties will brief the issue, the court says—and until it is resolved, there apparently won’t be any closed sessions that exclude the accused.  The prosecution is keen to have the briefing done pronto, for planning purposes over the next hearing sessions—-but the court balks at an expedited briefing schedule.

On to the day’s work.  Up next: 13U, another of the docket’s four protective order-flavored motions.  We’re in a quick coffee recess.

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Do you know what time it is?  9:09 a.m., better known as resplendent-in-judicial-robes time.  Judge Pohl calls our session to order.  And it’s seemingly a court-and-counsel only affair; all five accused are absent.   Confirmation of the latter comes in the form of chosen court attire: Cheryl Bormann has not donned her Abaya.  She instead appears in Western business clothes, her head uncovered.   Our first order of business: housekeeping.

Apropos of Cheryl Bormann, or her client, there’s a new lawyer for Walid bin Attash in the courtroom, LCDR James Hatcher.  The attorney has been detailed to the case since 2008, reportedly, even though he hasn’t argued in court or attended commission sessions.  Hatcher explains that he was released from the Navy in 2011—he’s a reservist—but reactivated earlier in 2012.  He’ll obtain new detailing documents to clear this up.

Also on our minds is the outcome of yesterday’s classified 505(h) session, regarding AE80—a motion to preserve evidence of existing black sites. Judge Pohl notes only that the 505(h) was held, and that, subsequent to the 505(h), the parties also met pursuant to Rule 802, regarding scheduling.  (AE80, we learn later, will await argument until February.)

Another key piece of morning business, as always, is voluntariness.  Prosecutor Robert Swann calls a witness, Maj. Michael Griffin.  This breaks with the government’s past evidentiary practice: the JTF-GTMO official who testified to voluntariness in prior sessions had done so on an anonymous basis.  But there’s no need to take the same tack with this witness, as Chief Prosecutor Mark Martins explains.  He also retroactively lifts the veil of anonymity from Griffin’s predecessor, whom he now identifies as Jennifer Straza.  Of course, Martins reserves the right to call unnamed witnesses as needed, in order to ensure security.

Swann and Griffin then march briskly through the commissions’ by-now familiar voluntariness chat.  Were all five accused advised of their rights to be present?  Did they voluntarily and knowingly sign written waivers of those rights?  Did they say they understood their rights, and the waivers they signed?  Griffin says “Yes” each time.

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We begin with AE20, regarding the time for the defense to respond to government motions.  The court thinks its moot.

Bormann is back, and doesn’t touch AE20’s mootness.  Instead she pushes forward with attorney-client matters—their merits, or ones surrounding their merits.  In any event, since October 2011, she has been unable to send written communications to her client, Walid bin Attash.  And there’s no question that what she writes to bin Attash is privilege-protected.  Nevertheless, the government’s prying eyes are always eager to peek into those missives—so she doesn’t send them.  And because she can’t really visit the accused freely (or bring in any written materials, without subjecting those materials to review by the privilege team), as she would in a domestic federal prison, the arrangement makes for insurmountable barrier to minimal representation.

Judge Pohl: What does this have to do with AE20?  He thought that was under discussion, not the alleged injuries to the attorney-client relationship.  And, as he observed earlier, AE20 is apparently moot.  Prosecutor Edward Ryan stands and agrees that AE20 is moot.  That’s enough for the court, who dismisses AE20.  One more housekeeping measure: Ryan notes the in-court presence of an NYPD case officer, Detective Patrick Lantry, whom Ryan wants to preserve as a witness for some future time; Nevin doesn’t like that idea, but the court punts, as the case officer won’t testify today.  Ryan, for his part, acknowledges the risk involved in stashing a government witness in the courtroom: he’s attended prior sessions, and will do so in the future.  Judge Pohl reminds the prosecutors of the requirement to provide the appropriate, prior notice of any upcoming testimony by Lantry.

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The official word from Guantanamo: our motions hearing has been cancelled on account of Hurricane Sandy.  We’ll have an update once we know more about future sessions.

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Lawfarers, it appears the day’s proceedings have been postponed on account of deteriorating weather conditions at Guantanamo—and might even be cancelled outright.  We’re thus in a holding pattern, as the unofficial word is that Judge Pohl will determine, at 1 p.m., whether today’s session will go forward.  Stay tuned.

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Chief Prosecutor Mark Martins last night issued this statement regarding the progress to date in this week’s motions hearing in Al-Nashiri.  It begins as follows:

Good afternoon.  Yesterday and today, the military commission convened to try the charges against Abd Al-Rahim Hussayn Muhammad al Nashiri held sessions to consider pre-trial issues raised by the defense and the prosecution.  I will briefly list these issues as they were heard, along with any results decided by the Commission.

• First, the Commission addressed whether it would consider any additional information regarding a motion to compel funding for  an expert consultant (Appellate Exhibit 77).  The Commission ruled that it would consider the briefs of the parties and the oral argument that took place on 17 July 2012, and that a ruling would be forthcoming.

• Second, the Commission addressed the government’s motion regarding the accused’s presence during the Commission’s proceedings (Appellate Exhibit 99).  The Commission ruled that the presence of the accused would be required periodically to ensure, on the record and in open court, that the accused understands his right to be present and his ability to waive that right.  Because the accused had not been advised of this right since April, the Commission recessed and ordered the accused to be present at the next session of court, which was this morning.  Six related motions involving witnesses, discovery, continuance, and classified information were either denied by the Judge or mooted (Appellate Exhibits 106, 108, 111, 119, 121, and 122).

• Third, the Commission engaged in an inquiry with the accused concerning his right to be present and the procedure for waiving that right.

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