Military Commissions

2/14 Hearing #4: Photos of Mecca, Book Quotas, and Metal Pens in Book Bindings

By Raffaela Wakeman, Wells Bennett
Thursday, February 14, 2013, 3:22 PM

Nine minutes past the hour, and the session resumes with some bickering about delays.  Recess was supposed to last until 1300, but, alas, we’ve reconvened a bit after that.   Judge Pohl wants an explanation for the delayed start time; apparently today’s prayer session ran a bit late.

We hear about this for a few minutes, and then march on---to searches of the accused’s legal bins, while they attended court proceedings earlier this week. On the stand is LT CDR Massucco, an assistant SJA. He tells bin Attash lawyer Cheryl Bormann that he only recently began work on privilege and mail matters.  Legal mail comes (when it comes at all) through a screening process, is marked, and goes on to the privilege review team?  Yes, Massucco says.  It turns out that some seizures indeed took place, both on February 11, and yesterday, February 13.  The former involved bin Attash, the witness says.  How many packets of material do you have, sir?  Four or five, Massucco says.  He’s looked at these, but not reviewed the documents in any depth.  Most, but not all of the papers bore JTF stamps.

The Chief Prosecutor cautions that defense counsel is inquiring about the defense’s own allegedly privileged materials---and thus inching closer to open discussion of confidential subjects. While he does, Bormann rises and reclaims several envelopes from Massucco.  Hold on there, he says: there’s potentially classified stuff in the envelope.  Martins interrupts, noting that some of the seized-but-now-recovered documents were observed in plain view, and that open-ended questions might better elicit what actually transpired---without having to get into what the confiscated papers say.   

Massucco describes one of the confiscated documents, which was seized from bin Attash’s cell.  He wasn’t there when it was taken, he says.  Bormann directs him to a stamp, which indicates an October 2011 date.  Wasn’t the stamp here entered then?  Well, Massucco says, the stamp has no initials where initials ought to go, under ordinary procedures. That’s what caused concern among the guard force, among other things.  And other stamps were incomplete on other documents, too.  Bormann shows one, a mis-stamped photograph.  But Massucco won’t describe it to her because, he assumes, the image is classified. After conferring with counsel, Brig. Gen. Martins tells us that the photograph is not classified.  Questions about legal vs. non-legal mail prompt a question from Massucco: is Bormann talking about attorney-client communications, or “legal” mail, defined broadly?  The witness asks for clarity; Bormann asks the court for relief.  We need consistency, she says: an order barring JTF-GTMO from seizing and reviewing material that’s been screened and stamped already---like, say, unclassified photos of public religious sites.  Nothing precludes the guards from re-seizing approved documents, even privileged ones, on whim.  That’s intolerable for the defense lawyer.

Some questions from Ruiz, who apparently served previously with the witness.  No materials were seized from al-Hawsawi, as far as this motion goes.  (Some other things---books---were).  Ruiz refers to a stamped document, which bears a scribble.  That’s a “J,” a marking belonging to CAPT Welsh, the witness believes.  Can Massucco look into the seizure of al-Hawsawi’s legal pad?  He can, and will, he assures Ruiz---though Judge Pohl notes that the instructions here will come from Massucco’s boss.  Now David Nevin inquires about seized things belonging to Khalid Sheikh Mohammed.  The lawyer has various questions, on transitions in the guard force (some are incoming, and others outgoing) and the particular area where KSM’s materials were taken (Massucco doesn’t know exactly, but thinks it to be his cell).  The witness generally agrees that a redweld file was seized.  Massucco will return these to KSM, he says.

Why were my client’s materials seized, inquires Nevin. Safety, the witness says: the stamps and the documents themselves disturbed the guard force. Were copies made of the confiscated material?  Nevin and the court both ask, and Massucco answers that he’s not sure, though he saw a few (4? 5?) photocopies of photos on Wednesday, in Camp Seven’s processing facility.  After some more back-and-forth, Massucco characterizes the incident in KSM’s cell as an “inspection,” not a “search.” The distinction catches Nevin’s eye.  A safety inspection, Massucco says, focuses on health, safety and national security.  Nevin furrows his brow, and desires to explore the witness’s views.  What’s a “search,” in your opinion?  And precisely what about the appearance of a stamp on documents can make the documents plausibly harmful to our national security? Do the members of the guard force have TSSCI security clearances?  The court eventually shuts these lines of questioning, despite Nevin’s protests.  He winds up shortly afterwards.

It’s Harrington’s turn, and he inquires about the three letters, and some books, taken from his client’s cell.  The latter consisted of the two volumes of the 9/11 Commission’s report, the Black Banners, and Perfect Soldiers.  Judge Pohl wants to know whether screened books, like documents, receive a stamp.  Books get another designation called a “Guan” number. In any event, Black Banners is a prohibited book, Massucco confirms, while notig that some “Guan” numbers appeared to have been penciled in improperly---thus raising blood pressure amongst JTF guards.  And there is a limit to the number of books detainees can have at their cell.  (He’s not sure whether Binalshibh has exceeded his book quota.)

The Chief Prosecutor wants to get down to what happened and why.  Responding to his questions, Massucco indicates that, besides books and other things, the seizures here turned up contraband: a metal pen in a book's binding.  That was culled out, Massucco says, and the chain of custody scrupulously noted.  He reiterates the guards’ concerns about questionable stamping, too.  The lawyer also asks about motivation: Massucco has been attempting to resolve the mail issue since yesterday, and to return items if possible? Yes, says the witness.  And of course, you haven’t spoken to the prosecution about the contents of any seized materials, have you? Absolutely not, pursuant to instructions given to Massucco by Martins himself.

The witness done, the court now desires to learn the government’s proposal for how to move forward---while avoiding avoid improper seizures in the future. For Martins, the day’s fracas only illustrates precisely why an interim order would be adequate, both to protect privileged information, and to police contraband.  The Chief Prosecutor is keenly aware of the history here---the Woods policy, Col. Coldwell’s handling of it, and so on. Thus the gist of his argument is to reiterate just how much the prosecution desires to see an order--interim, final, or other--entered, so as to bring mail problems to resolution.

Somebody needs a comfort break. Others are craving some fast food.  Pair that with afternoon prayer, and you have an hour’s break.  That, and presumably, a later-than-usual stop time.