Terrorism Trials: Military Commissions

2/13 Hearing #3: More from Col. Bogdan

By Raffaela Wakeman
Wednesday, February 13, 2013, 4:31 PM

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.

Harrington’s all finished. Up stands Nevin, who reminds Bogdan that he said that he didn’t even notice the smoke detector/microphone on his first visit with Mossberg. And there wasn’t any notice that these rooms have recording equipment in them? That’s true. Is there a muting function on the mics? Bogdan’s not sure; there didn’t appear to be when he looked at it.

KSM's lawyer again angles for information about Bogdan's contacts with the CIA. The witness isn't biting: No, he hasn’t had contact with the CIA about recording in Echo II. But J2 has access to Echo II and to the “pin-sized” mics that Mr. Ryan mentioned--couldn’t J2 install those microphones in the huts? Well, they haven’t asked that of me, and I’m not sure if they have those microphones. I wouldn’t expect that they would put something in the room without asking me. Of course you wouldn’t expect it, Nevin says. And you probably wouldn’t know about it either, would you? No, Bogdan wouldn't. And just to recall, Nevin says, you didn’t have any knowledge of the audio equipment before it was brought to your attention as a result of this motion? Bogdan confirms that that is correct.

Bormann’s back, and wants to know more about the smoke detectors. Bogdan confirms that it’s clear upon visual inspection that the device Bormann describes is, in fact, a microphone. He’s been in the huts 5 or 6 times. And on none of your previous visits did you notice the microphones, asks Bormann? That's correct. But the guards are in those rooms all the time, yes? He agrees. Did they say anything to you about them? No, they didn’t.  As it happens, Bormann explains, Maj. Hennessey, Bormann’s predecessor, sent a letter to then-CAPT Welsh.  In it, Bormann inquired about audio monitoring, and demanded that it cease. Were you ever aware at any time before our motion was filed that there were complaints about this, she asks? No, Bogdan was not told anything about that.

The guards were supposed to focus only on contraband and safety, Bormann reminds Bogdan.  Were those in a written SOP? Bogdan doesn’t know if he’s put those orders in a written SOP. Are they in any other written SOPs? There are more than 160 SOPs (totaling thousands of pages), so he can’t say for sure. You didn’t look at the written SOPs by your predecessors about where the detainees have visits with their attorneys? He did, but say he can’t recall the details of each and every one.

Would Bogdan have been aware of an emergency work order to repair those cut wires? Yes he would have.  But here's the thing: there wasn’t any such order.

Bormann asks about the power outage in early 2012 in Echo II, before he arrived at JTF-GTMO---there were attorney-client meetings happening at that time, and the guard force opened the door and maintained surveillance that way for several hours? The  defense objects and Judge Pohl doesn’t understand this line of questioning either: would she prefer the open door with the guard force standing in plain sight keeping watch rather than the current practice? He also scolds for straying into irrelevancies and for testifying about an incident, instead of asking questions. Bormann asks Bogdan whether he’s aware of the incident that occurred before his arrival where guards sat outside the huts with doors open, surveilling the attorney-client meetings? No, Bogdan was not.

Bormann then asks about the SOPs.  Was the order only to observe the detainees with the video cameras, in order to look for contraband, and to ensure safety given to individuals other than your guard force? The prosecution objects, saying that Bormann is heading towards a verboten intelligence agency inquiry.  But Judge Pohl overrules the objection, and Bogdan answers no.

Ruiz comes back up: Yes, J2 has access to Echo II.  Fine, but what does that mean?  Ruiz wants to know more about the definition of “access."  Is it unilateral? No, not without a need to be there, Bogdan replies; it's for repair work and maintenance on the systems. They talk about the relationship between J2 and the guard force. So the huts seemed to have been in pretty bad shape, Ruiz says. J2 owns all the tech, wiring stations, monitoring, all of the intelligence portions of Echo II, right? Bogdan confirms that it does.

Harrington would like to see this microphone with his own eyes; can Bogdan order the guard force to bring one here? Judge Pohl isn’t terribly keen on this, since the government’s purpose was to establish that the item wasn’t hidden or camoflauged---although it will concede that, yes, the contraption looks like a smoke detector.

Ruiz wants Col. Bogdan available for recall.  His testimony is complete.