Case Coverage: Military Commissions

12/18 Motions Session #3: More Meetings, More of the Time

By Wells Bennett
Wednesday, December 18, 2013, 3:39 PM

The curtain is raised once more. Applause surges rapidly at the Smallwood CCTV hovel and then dies down just as rapidly, as lunch comes to an end.  Counsel is Mustafa Al-Hawsawi’s lawyer, Walter Ruiz.  His witness is Col. John Bogdan.

The two talk about Walid Bin Attash’s motion, which alleges that JTF policies unreasonably prevent defense lawyers from setting meetings with their clients.  Ruiz asks first about scheduling conflicts; so does the court. Can Bogdan arrange for International Committee of the Red Cross (“ICRC”) visits at the same time as lawyer-detainee visits?  Yes, answers the witness---but Ruiz has something else in mind.  The lawyer is instead interested in which entity is prioritized in that situation.  Does Al-Hawsawi ever have to choose between meeting with the ICRC, and meeting with Ruiz?  Bogdan isn’t aware of such an occurrence, given that ICRC trips are scheduled at regular intervals and upwards of a year in advance.  Of that Ruiz is visibly skeptical.

Hold on; there’s an interruption from Bin Al Shibh.  The detainee unsurprisingly says he wants to leave, and charges that Judge Pohl is a “war criminal.”  Judge Pohl unsurprisingly has Bin Al Shibh escorted to the holding cell. The detainee says he “doesn’t care” about this removal. Out he goes for the fourth time this week, as always accompanied by a JTF guard force contingent.

Back to Ruiz. He asks Bogdan, among other things, about: who or what would approve a request for more guard forces, and thus make for greater flexibility in legal visits (the Joint Staff); the adequacy of current staffing levels (Bogdan thinks he has enough folks); and staff clearances (Bogdan affirms that not all officials at Camp Seven have TS/SCI clearances---some have only secret-level clearances). One more query: why can’t detainees meet lawyers at Camp Seven?  Because there aren’t appropriate facilities there, Bogdan says.  

Edward Ryan, a prosecutor, takes his turn now.  Manpower is on his mind first, beginning with the specialized, TS/SCI-cleared guard force that handles transportation of high-value detainees. Secret-level people can’t work on that force, apparently.  The court suspects that this requirement imposes Bogdan’s only-six-meetings-at-once rule, of which Bormann has complained; right, Bogdan agrees, adding that TS clearances take quite a long time to process.  The point: the witness can’t just muster up additional, qualified guard personnel, so as to allow for more attorney-client meetings. That in turn informs the 14-day requirement for setting meetings. Ryan asks if there is any limit on maximum workdays allowed for legal visits; Bogdan says there are none.  Commission sessions are busy for Bogdan and company, he tells the prosecutor.  These cut down on off-time, and put added stress on his guards.

What of the meetings that Bogdan denied previously, those requested by Bormann and Schwartz?  One of these, Ryan suggests, had to do with overbooking of the meeting facility, but , in fact, involved a partial accommodation of Bin Attash’s team.  The witness agrees both with that characterization and with Ryan’s other suggestion: that Bin Attash himself declined to proceed with the meeting.  Policy wasn’t the problem.  When asked, Bogdan recalls that he denied another, requested weekend session.  But this had to do with a long-slog for his staff---they had worked seventeen or twenty days in a row, on account of commission sessions, and thus needed a break.  Ryan sits.

Re-direct now, first from Bin Attash’s attorney Cheryl Bormann.  You really don’t have sufficient manpower to set meetings after hours, on weekends, or when commission sessions are held back to back? Right, says the witness.  And only certain TS/SCI people can transport high value people like Bin Attash?  Right again.  The lawyer mentions Bin Attash’s allegedly unilateral refusal to take part in a legal visit.  Bogdan doesn’t recall the details of precisely what might have motivated the detainee.

Now to manpower: the desire to give staff some rest time, Bormann suggests, is what drove you to deny my meeting request. So no justification, ever, no matter how urgent, would have swayed you?  No, Bogdan answers. Lawyer and witness wrap up with an excursus on the distinctions between detention facilities and prisons.  The gist here is that federal prisons allow for vastly wider attorney access than he allows at Guantanamo. But Bogdan didn’t learn the details surrounding prison meetings, when he traveled to federal facilities to learn more about their policies.

Second in our re-direct sequence is KSM lawyer David Nevin. He asks about the six-meeting-max rule; it apparently predated Bogdan’s tenure at Guantanamo.  Ditto the TS/SCI requirement for transport staff, the origin of which Bogdan isn’t sure; decisions about security levels and manpower additions are above the witness’s pay grade. (This last subject hints at classified matters---and the prospect of a Rule 505(h) session; Bogdan says he cannot answer a further question from Nevin in open court.  Classified litigation on the matter may follow, but Nevin moves on in the meantime.)  A few questions more, and Nevin wraps up.  The witness is excused.

So much for evidence about legal visits---give or take David Nevin’s hanging question about guards’ security clearance requirements.  On that, the defense claims that, under Rule 505(I)(3)(A)-(B), it is possible for the government to proffer an unclassified answer for Bogdan, now.  But the prosecution thinks somewhat differently, though, and wants to inquire into the matter further.  After some banter, a path clears: argument on Bormann’s motion will be postponed, until the prosecution can resolve the classification issue. The Chief Prosecutor, Brig. Mark Martins, points out that all this comes after---and assumes---relevance, which still isn’t clear to his side.

CDR Kevin Bogucki, Bin Al Shibh’s attorney, stands and notes his side’s filing of an emergency motion, regarding his client’s involuntary, repeated removal and right to be present in this capital case.  This concerns, in particular, the alleged abuses of which Bin Al Shibh and Bogucki repeatedly have complained. The mistreatment moreover violates longstanding commission orders; the prosecution thus can’t possibly be surprised by the filing, says Bogucki.  The court is clearly reluctant to jump headlong into an issue about which the government learned only hours before.  The emergency motion is tabled for now; prosecutors apparently will look the filing over tonight.