Terrorism Trials & Investigations

Al-Nashiri #2: Witnesses on Mail

By Benjamin Wittes
Tuesday, January 17, 2012, 10:54 AM

By Benjamin Wittes & Ritika Singh

Military Judge Pohl next raises the issue of witnesses for the big matter on the court’s agenda--the monitoring of Al-Nashiri’s legal mail. He says he probably won’t hear the motion itself until tomorrow. But the defense, he says, has indicated that it would like to compel two witnesses to come: Rear Admiral Woods and a member of privilege review team.Defense lawyer Lt. Commander Stephen Reyes argues that a member of the privilege review team should come to the court and testify so the court can understand the procedures. Judge Pohl seems skeptical. Isn’t that a matter of a written policy that we can just read? We need, Reyes argues, to understand the parameters of the privilege team’s responsibility. The mechanics, Judge Pohl responds, are not the subject of the motion. What about Admiral Woods? Why do we need him? Reyes says that the rationale is the same as with members of the privilege review team: We need to establish Woods’ intent in applying this order. We need to explore how this order is supposed to be implemented.Commander Andrea Lockhart, speaking for the prosecution, argues that the defense has not explained why the two witnesses are necessary or relevant. As of today, she says, this order has not been implemented as to Al-Nashiri, so the privilege review team member would testify about things that are not yet applicable. At least until the order is implemented, a team member is not an appropriate witness. Judge Pohl asks her whom the PRT works for. If you adopt this order, she responds, you would be the ultimate arbiter. Who selects the members? She acknowledges that they are selected by the government for habeas cases. Are they allowed to do military commission work? Yes, they are allowed to under Judge Hogan’s order. Do you believe that the Woods order is so clear that there is no need for his testimony? Lockhart says the matter is not ripe at this time.Judge Pohl asks if she is asking him to adopt an order without regard to what Admiral Woods meant or intended. Lockhard responds that this is an order applied to all other detainees that the government is asking him to apply to Al-Nashiri. To the extent he does so, she says, he would be the final arbiter of what it means. So as far as any ambiguity that may arise, he asks, his interpretation would govern Adm. Woods’s view of what it means and is therefore irrelevant. She affirms that that is her interpretation.

Reyes says this is an issue worth exploring with Admiral Woods. Judge Pohl asks if Reyes has concerns that Admiral Woods would not follow an order given in this case. Reyes responds that the document itself would give him authority to circumvent it. This court issued a very simple ruling: We stamp the mail, it goes in, no questions asked. Judge Pohl asks: Is there any question that this has not been followed in this case? There was one affidavit, Reyes says. If I issue an order and there’s a question about whether it’s followed, Judge Pohl asks, isn’t that the right time to come to me for a remedy? Reyes responds that if the government is using this as a guideline to follow, then the admiral’s testimony is still relevant.

Judge Pohl makes clear that there is going to be a separate order after the arguments tomorrow. There is a lot of back-and-forth here with both counsel.

Judge Pohl denies the defense motion for testimony as to the member of the privilege review team and grants it as to Admiral Woods' solely on the question of how the Woods memo is being applied and how Woods anticipates it being applied in this case.