Military Commissions

2/14 Hearing #5: Stamps, Mostly

By Raffaela Wakeman, Wells Bennett
Thursday, February 14, 2013, 5:45 PM

We return from an hour’s break, with some GTMO press refreshed by milkshakes purchased from Fort Meade’s Burger King.  A video teleconference with CDR Jennifer Strazza, our next witness, awaits.  Some nuts and bolts precede her testimony---a stipulation about Echo II and the layout of the visitation areas there, apparently.  Another stipulation goes to Strazza’s contemplated testimony, too.  It moots the need for her to appear.

That brings us back to mail, and Judge Pohl’s question of how we shall go forward, given the pendency of AE18 and AE32.  Will there be some kind of interim procedure?  A failure to do so leaves the uncertain status quo in place.  Cheryl Bormann doesn’t like AE18 (a prosecution proposal), and emphasizes the fine-grained character of our current problem: inconsistent stamping regimes.  Those give rise to seizures, even when her client, bin Attash, hasn’t violated any rules.  The problem thus isn’t the lack of a privilege review team for written communications, but the lack of a coherent policy at Camp Seven.  She asks Pohl to take steps to bar nonsense seizures along the lines of those discussed today.  Security problem?  Okay to seize.  But photos of Mecca, or stuff blessed by screeners in 2011?  No.  The court asks about the marking regime as it exists now.  Does non-legal mail get stamps?  It gets a “banner,” according to the Chief Prosecutor; J2 may have a look, as well.  Judge Pohl finds the stamping system ever-changing, and indeed, subject to evolving rules.  This prompts Brig. Gen. Martins to read from the government’s proposed order, AE18, which would stabilize matters.  Bormann isn’t persuaded---what about the “Guan” mark, for books?  And, she says, even Massucco, the responsible official from the SJA, didn’t seem to know what the stamping protocols really were.  At bottom, she’s asking the court to order guards to get their act together, and to confine seizures to those made on legitimate national security grounds only.

Like Bormann, David Nevin objects to AE18.  He reminds the court that his client’s privileged materials were taken and reviewed.  That’s a read for content, Nevin says; the court thinks Nevin is merely characterizing the witness’s testimony, or at least drawing an inference.  The lawyer is confused, then.  If Massucco and company didn’t examine contents, then how could they be concerned about the documents themselves, as they said they were?  The question brings him to join Bormann’s proposal for a inspection-for-contraband-only regime.  But that’s an approach---does Nevin want that on an interim basis, or to wait for resolution of AE32 and AE18?  Judge Pohl asks, and Nevin goes on a bit, citing Al-Nashiri.  The lawyer thinks AE18 irrelevant.  The court ought to order guards not to inspect legal bins for content, and only for the presence of physical contraband.  That will get us to April, and clear a path for resolving AE18 in the meantime.  Questions about appropriate markings can be resolved in consultation with the SJA, he adds.  The court sees workability problems with that last feature.

A pause.  One can see Judge Pohl winding up.

And then he pitches: the defense can propose an order addressing what we’ve come to know as the “bin issue.”  That will provide interim relief, as we await a ruling on AE18 and AE32.  Prosecutor Edwards Ryan is grateful for the practical solution noted by the court---but he pushes gently, nevertheless, in the direction of the government’s proposal, AE18.  That will put the guards in a better, clearer position.  The court neither agrees nor disagrees with Ryan’s idea.  Thus he renews his offer to the defense: seven days to submit a proposal, with any prosecution response due seven days afterwards.  Speed is paramount for the court.  Ryan again gestures towards discovery, which the government has begun to hand over.  He’s eager to get clarity on the rules for handling documents.  He sits.  But Nevin stands, and renews his strenuous objection to AE18, and its definition of “contraband” (among other defects).  Don’t enter that order on any basis, the lawyer argues.  Binalshibh lawyer James Harrington supplies some more context.  The seizures this week, he says, violated privileges.  The impact on our clients is enormous.  The strain on the lawyer-client relationship is simply astronomical.  Every seizure, every piece of paper, is a big deal.

Cheryl Bormann adds two cents: remember, she says, there’s a retrospective aspect to our dispute, and I don’t want that to get lost as we move forward.  The court tells her, in so many words, to brief the question---though there’s the pesky matter of facts.  As to those, Bormann needs witnesses identified.  The Chief Prosecutor recommends an orderly investigation by the Commander.  With that done (and written statements compiled, and so forth), the prosecution can respond to discovery requests and so forth.  Martins imagines a quick turnaround---seven days, he clarifies in response to the court’s query.  The defense lawyer next asks for peace of mind on AE133, which won’t be resolved for some time now.  Thus she asks Judge Pohl to take the accused to Echo II facilities without any installed listening devices.

Ryan is befuddled.  Wasn’t AE133 an emergency?  And we took a day off earlier this week, so counsel could investigate these issues.  The prosecutor wants the “emergency,” “top of the docket” aspect knocked out, given our current posture.  He adds that Echo II staff obviously can disconnect monitoring equipment, but doesn’t want to run afoul of any extant preservation orders.   The court reminds of huts 1 through 4, where broken audio equipment never has been repaired.  Disconnect the wires in those huts.  And, Judge Pohl adds, removal won’t violate any of my orders.  So much for Bormann’s concerns there.  Obviously, she believes that, once the evidence winds up, the defense will prove clearly and convincingly that, yes, attorney-client discussions have been monitored.  On that note, Judge Pohl acknowledges the procedurally obvious: there won’t be any immediate abatement now, so the defense’s motion is denied in that regard. But it is still live with respect to any past harms.  A last word from the prosecutor, who stresses that removal does in no way imply prior use by audio equipment.

Wrap-up and housekeeping now: remember how the defense wanted to supplement its motions to compel, in light of Judge Pohl’s (then oral, now written) ruling on Rule 703? Well he’s received some, but adds that some of the supplemented defense requests appear to be moot.  Take Col. Torres, for example; we don’t need to discuss his testimony, having heard it this week.  Some tut-tutting from the court: ex parte witness requests are for exceptional circumstances only.  Remember that.  “Exceptional,” the court says, doesn’t mean “defense wants not to show its requests to the prosecution.”  Ruiz urges the court to compel testimony from the Convening Authority’s legal advisor, Michael Breslin, and to bear in mind testimony about him from Admiral MacDonald.  But Ruiz doesn’t know what Breslin will say---and that leads the court to reject Ruiz’s request.  James Connell III sees an opportunity here: he withdraws motions to compel AE45, AE48 and AE61.  The court then goes down the docket, mentioning Admiral Woods.   Why compel him to appear?  Nevin cites communications between Woods and the Convening Authority and SOUTHCOM in fashioning the baseline review.  Prosecutor Jeffrey Groharing notes that none of the foregoing is disputed; and that, as usual, the defense never spoke to its sought witness---who departed GTMO during the nine months that the defense motion has been pending.

Here’s some emphasis for the Chief Prosecutor: we have discovery that will help these issues to get resolved.  But, he tells the court, we can’t produce it until counsel sign the memorandum of understanding under the protective order.  Judge Pohl hears him.  If counsel choose not to sign on to the protective order, then they might have to leave the case: the defense cannot go forward in a case like this without access to classified material.  In colloquy with Ruiz, Judge Pohl notes the ABA Guidelines.  If he becomes aware that counsel elects not to investigate potential defense, he might have a duty---under the Guidelines---to inquire.  What if counsel refused to apply for a security clearance?  He’d be curious about representation issues in that case.  Nevin understands those issues well: the order, he says, precludes him and others from sharing classified information with their clients.

Whew.  The court resolves our last pending motion to compel, regarding Admiral Woods.  His testimony is found both relevant and necessary.  We’ll thus see him, and Admiral MacDonald, in April. He urges the defense to make any and all preparations necessary to streamline the upcoming testimony---to examine Woods’ rulings, and to interview MacDonald, for example.

A word or three more (about Rule 505(h) and (g) arcana, which we’ll mercifully excise), and we’re done.  See y’all in April, when we may get to the big-ticket law motions.