Case Coverage: 9/11 Case

2/12 Session #5: In Which Lawfare is Cited, and Monitoring is Discussed

By Wells Bennett
Tuesday, February 12, 2013, 3:53 PM

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.