Military Commissions

10/22 Motions Session #1: If You Would Please Stop Searching Our Legal Bins, Thanks

By Wells Bennett
Tuesday, October 22, 2013, 10:23 AM

The beginnings of a Maryland autumn can be discerned outside Fort Meade’s Smallwood Hall.  Inside, the by-now familiar CCTV screen comes to life and displays an empty judicial bench, the Joint Task Force Guantanamo insignia affixed to the wall behind it.  The military judge ascends and calls United States v. Mohammed et. al. once more to order.   Welcome back y’all.

All the accused are in the courtroom, along with their lawyers.  There’s some housekeeping chatter (on prayer break procedures, and expected stipulations, among other things), before we turn to an advice of rights.  Judge James Pohl addresses the detainees about their rights to be present---and the need to waive such rights voluntarily, and with full knowledge of the consequences of a waiver.  Do the five accused get this?   Yup.

Walid Bin Attash’s lawyer, Cheryl Bormann, rises and complains of a gross violation of judicial orders by JTF-GTMO staff.  On September 25, says counsel, JTF command inspected her client’s cell and removed materials from legal and non-legal bins, and translated and read both.  Some of this---properly stamped and identified---material was privileged, Bormann says.  That's a bigtime no-no under past rulings from the commission, including AE144.  The lawyer claims further that her client had not communicated with her for some time, apparently because he---unsurprisingly enough---fears seizure and translation of privileged correspondence, even more than he did before.  The gist: Bormann urges the court to enforce his orders regarding the protection of legal bins, and to protect a very much endangered attorney-client privilege.

This is the first that the Chief Prosecutor, Brig. Gen. Mark Martins, has heard of these violations, he says.  He thus asks for time to run them to ground.  Still, Martins adds that entry of a written communications order---something the prosecution has long sought, by means of AE18---would bring greater order and clarity to the very problem vexing Bormann and Bin Attash.  Judge Pohl asks: is there any written standard operating procedure for bin searches?  There is, Martins answers, while reiterating his wish to investigate further about what, in fact, transpired vis a vis Bin Attash.  The court is visibly curious about whether AE18 would actually regulate the searches of detainee cells; Martins nevertheless emphasizes that the system proposed by his side would be comprehensive.

But Bormann protests: the still-pending AE18 deals only with inbound legal mail, not with how JTF must behave once legal mail has been received.  “We have to be able to have certainty,” she says, that privileged materials will remain inviolate---but we won't get that even if AE18 is entered.  How can counsel send in properly stamped, privileged materials, with the knowledge that they will be rifled through by the military? Adding insult to injury, these seizures often concern items that have been seized and verified time and time again.  How many times can the same document be deemed okay by detention officials?  The effect on the attorney-client relationship is devastating.

CDR Walter Ruiz, Mustafa al-Hawsawi’s lawyer, joins in Bormann’s objection.  Only this week, he was trying to explain to his client why JTF wrests ostensibly confidential items from his legal bin.  It’s corrosive of an already tenuous attorney-client relationship, says Ruiz.  The lawyer refers to some expected testimony, this week, from the Staff Judge Advocate regarding searches of legal bins---last February.  That will illustrate what we’re dealing with, your honor, says Ruiz: a situation in which the detention staff doesn't obey the rules.  Given that, what help will a written communications order be?  Such an order wouldn’t address searches of bins, and in any case, JTF GTMO doesn’t obey orders.

The Chief Prosecutor says a few words in rebuttal, underscoring both AE18 as a workable solution to defense objections, and also underscoring the very real security imperatives in play.  JTF GTMO has, after all, found a pen-refill in one detainee’s item----that’s a security risk, and physical contraband under JTF policy.  And a privilege team, established pursuant by AE18, could perform its own baseline review of what’s okay and what’s not, and then bring needed clarity---and, he seems to imply, a diminution or elimination of legal bin searches.  (Mention of another “baseline review" raises the judge’s eyebrow, as all in the room and viewing by CCTV recall the much-litigated 2011 "baseline review.")  There’s a lot in those bins, Martins goes on, and generations of guards tend to come and go.  He sums up: we need AE18 entered. 

A few more words from other defense lawyers---one disputes AE18’s relevance to searches, and another shudders at the prospect of another “baseline review”---and our impromptu argument closes.  Judge Pohl expresses concern about the camp’s failure (or refusal) to follow judicial orders.  Still, he’s hesitant to give any relief without a developed factual record, he says.  It seems we will get such record, at least in part, this week.