Military Commissions

2/13 Hearing #1: You've Got Mail Redux

By Wells Bennett
Wednesday, February 13, 2013, 10:25 AM
The fated hour arrives; the gavel bangs; the judicial authority almost emanates.  The commission once more is called to order.  Both sides are present, lawyer-wise, with a few individual lawyers absent.  The accused are also absent.  And, prosecutor Edward Ryan notes, we’ve got some FBI and Criminal Investigation Task Force (CITF) personnel here, too.  Another prosecution attorney, Robert Swann, then marches through the usual voluntariness colloquy, with the usual JTF-GTMO witness.  All five accused were advised of, completely understood, and knowingly and voluntarily waived their rights to attend today’s proceedings.What will those consist of?  We continue with attorney-client monitoring issues raised by defense motion AE133----and maybe, with legal mail issues raised in AE32 and AE18, defense and government motions, respectively, regarding the handling of written attorney-client communications.  There’s also AE008, the defense’s motion to dismiss for defective referral.  Our testimony yesterday touched on the former as well as the latter, and we expect some similar jumping around today.

The first witness is Navy LT Alexander Homme.  He appears by video-teleconference (“VTC”) from a Staff Judge Advocate’s (“SJA”) office in Texas.  Bin attash lawyer Cheryl Bormann questions the witness, an attorney.  He was assigned to JTF-GTMO SJA’s office previously.  Like yesterday’s witness, Homme’s legal work involved detainee handling issues---mail delivery and ICRC medical matters, among other things.  In late October/early November of 2011, Homme took up work with high-value detainees.  Bormann’s curious: did Homme interact regularly with FBI or State Department personnel while doing that?  No, he didn’t.  Homme also served under Navy CAPT Thomas Welsh, and alongside yesterday’s last witness, LTC Torres, and his successor, CMDR Jennifer Strazza.  The high-value detainee tasks were governed by a standard operating procedure (“SOP”), and informed by oral instructions from Torres and Welsh, too.

Talk turns to the 2011 revision of detainee screening procedures.  A written policy by RDML David B. Woods, the JTF-GTMO commander at the time, announced this.  The document, "Woods Memo 1,” governed procedures for lawyer-generated notes, as well as documents lawyers left with detainees.  Under the memo, Homme’s duties required screening---review---of both.  Homme specifically rejected an effort by Bormann to bring an Arabic translation of the Woods policy to her client, bin Attash.  Ditto the bin-Attash-relevant pages of “The Black Banners,” by Ali Soufan; certain ethics rules for Navy JAG lawyers regarding privileged material; an amicus filing in Al-Nashiri; and pleadings in a human rights case against Donald Rumsfeld and other officials.

When asked, the witness acknowledges pressure from JTF commanders (in the form of orders).  Homi also wrote an article, “First Tour IA: Guantanamo Bay,” which was published on the U.S. Navy JAG Corps official blog in August 2012.   In it, Bormann notes, the witness said he faced “immense pressure from multiple directions,” including from defense lawyers, JTF officials, and “political influences.”  Homi testifies that the latter referred to the ICRC.  The same article describes interactions with FBI, SOUTHCOM, and State Department personnel, too.  Homme also dealt with GTMO intelligence officials.

David Nevin, one of KSM’s attorneys, poses a question or two.  Homme clarifies that he didn’t interact with intelligence officials outside of GTMO’s J2 branch.  He had vague familiarity with the latter’s activities regarding mail handling, but wasn’t “read formally” into J2’s programs.  Nevin: but you don’t know about intelligence operations at Echo II?  The witness has no such knowledge.  CDR Walter Ruiz rises on behalf of his client, Mustafa al-Hawsawi, and seeks to build on a few of Homme’s earlier answers.  Why wasn’t Strazza immediately available to assume Col. Torres’ responsibilities?  The witness doesn’t know why, or why Torres was removed from his job.  Homme likewise acknowledges J2’s content review of detainee mail---but not legal mail.  And he remembers rejecting some documents Ruiz had brought to his meetings with al-Hawsawi.  

Nothing further from the defense; trial counsel Clay Trivett now will cross-examine.  The prosecutor refers to Woods’ orders.  Was Homme aware of Judge Pohl’s prior rulings (ruling and order) in Nashiri, regarding screening?  He was.  Welsh instructed Homme not to review any written materials produced by the attorney, and that such materials could be in English or Arabic (which Homme doesn’t speak).  He emphasizes that his review was a “flip-through:” anything obviously not lawyer-produced would go into the “rejection” pile; but if a lawyer said a document was lawyer-produced, that ended the matter.  Homme would then set such documents aside.  Screening attorney-client mail, Homme tells Trivett, wasn’t the favorite among his duties; and he was aware that a “privilege team” was being established, at the time, in order to relieve the SJA of its unpleasant mail screening duties.  Wiht respect to specific recollections, Homme says he only remembers some newspaper articles that were culled from attorney-client mail; he never looked at any lawyer-client communications, however (and again, doesn’t speak Arabic, the language in which many materials were written).  Trivett then cites Homme’s rejection of certain items attached to correspondence between Bormann and her client.  Homme blocked only attachments, but that didn't stop their transmission to detainees: the attached documents could have been sent via regular mail channels.  Homme thinks rejected items ordinarily could have been sent to bin Attash by courier, too.  It was a tough balance, Homme says, trying to respect the attorney-client privilege while ensuring national security.

Trivett returns the baton to Bormann.  She asks about Homme’s review of legal, privileged stuff: if a letter contained attachments, the latter would be excised if they did not contain attorney markings.  Homme says he viewed attachments as separate, and would reject them---thereafter taking the culled items to J2 for screening, or returning them to a defense team member (and sometimes resubmission by non-legal mail).  So rejected material could be sent through the non-legal process via U.S. Postal Service?  Yes, Homme affirms, and agrees that intelligence personnel might also screen the non-legal items.  When asked, Homme says he doesn’t know whether some non-legal documents simply failed to reach the detainees.  But high value detainees did complain to Homme about months of delays, and about incomplete documents, in non legal mail.   The punch line: so if Bormann wanted to discuss the Al-Nashiri brief, filed a week in advance of a scheduled GTMO visit, how could the lawyer ever submit the documents in sufficient time for a client meeting? Homme doesn’t know how long screening would take.  But the witness believes the Al-Nashiri pleadings are related to this case.

Al-Baluchi’s counsel, LtCol Sterling Thomas, plays on the same string as Bormann, noting an amicus brief filed on al-Baluchi’s behalf in a separate case.  Could Thomas not submit that to al-Baluchi, as attorney-client mail?  No, he couldn’t, says Homme.  The filing would have to go through non-legal mail---though, Homme says, written notes would make it in.  Another follow-up from CDR Ruiz: does non-legal mail, deposited at Guantanamo, have to route back to the United States before returning to detainees at the camp?  Homme remembers that.

The witness' testimony comes to a close.  Army Col. Bogdan is up next---after a brief recess.