Case Coverage: Al Nashiri Case

Coverage of Al-Nashiri’s Arraignment: Motions Hearing Part 3

By Keith Gerver
Thursday, January 1, 2015, 12:00 PM

At last, you have reached the final post in Lawfare’s coverage of the motions hearing portion of Abd al-Rahim al-Nashiri’s arraignment. The last argument focused on the defense’s motion to bar Joint Task Force–Guantanamo personnel from reading attorney-client communications in violation of the attorney-client privilege.  This part of the hearing, however, was simply much too long to provide blow-by-blow coverage, as I have done with the previous two motions.  Instead, I’ll be providing a briefer account of the parties’ arguments and Military Judge Pohl’s conclusions.

The defense’s position, argued primarily by Lt. Commander Stephen Reyes, centered on what it perceived to be the government’s sudden shift in policy with respect to reviewing mail marked as attorney-client privileged.  According to the defense, prior to October 2011, JTF-GTMO staff had never reviewed mail sent by defense counsel to al-Nashiri to determine if it was appropriately marked as attorney-client privileged information.  Instead, Reyes stated that JTF staff would merely review the packages for any physical contraband, such as staples or pins, and check to see if the envelope and individual pages of written communications contained markings identifying the contents as attorney-client privileged.  In October 2011, however, Reyes stated that officials from the JTF-GTMO Staff Judge Advocate’s office conducted a review—without notice to the detainee or detainee counsel—of all documents found within al-Nashiri’s and other detainees’ cells to determine which documents were appropriately marked as attorney-client privileged.

As emerged in testimony from Commander Thomas Welsh, the JTF-GTMO Staff Judge Advocate, detainees’ documents are placed in one of two bins within their cells.  One bin is intended for “legal documents,” which includes anything related to the detainee’s case.  The other bin is for all other documents.  Lt. Commander Reyes argued that the review involved security personnel and linguists purportedly from the J2 [Intelligence] department “reading” all documents found with the cell, including those documents that had been placed in al-Nashiri’s “legal bin.”  Reyes contended that this review violated the attorney-client privilege, as it involved reading the contents of all communications between the defense and al-Nashiri.

Commander Andrea Lockhart took up the government’s position.  She argued that this one-time “baseline review” of all documents found within the detainees’ cells was justified as an exercise of the JTF commander’s inherent authority to run his detention facility in a manner that ensures national security, safety, and force protection.  Indeed, she contended that these concerns outweigh the protections offered by the attorney-client privilege.  Lockhart—and Commander Welsh during his testimony—stated that the review did not involve “reading” the detainees’ documents, but “scanning” them to determine if they were appropriately marked as attorney-client privileged communications.  Lockhart argued that this review was necessary, given that a number of defense counsel—though not al-Nashiri’s team—had been inappropriately marking certain documents as attorney-client privileged communications.  Both Lockhart and Welsh stated that this review of all detainee documents, not just those from attorneys who were breaking the rules, was more “evenhanded.”  In addition, Lockhart made clear that the SJA office and JTF security personnel never provided the prosecution with any information as to the contents of the communications.  To ensure that such information was not communicated, Lockhart recommended the standing up of a “filter team” that would review attorney-client communications to determine if they are appropriately marked as such.

Military Judge Pohl was highly skeptical of Lockhart’s line of argument.  He suggested on multiple occasions that the logic–which focused on national security, force protection, and safety concerns–made little sense.  He stated that if the government were worried about defense counsel providing information to detainees that might undermine national security, safety, or force protection, then this would justify listening in on verbal communications, as well as reviewing written communications.  Why, he wanted to know, could the government rely on defense representations concerning one but not the other?  He also questioned the sudden need for a review based on these concerns, given that no review had been conducted in the previous three years.  Judge Pohl also pushed back against Lockhart and Welsh in their suggestion that there was a meaningful difference between “reading” and “scanning,” stating that the only way to determine if the communications were appropriately marked as attorney-client privileged would be to read the contents.  In addition, Judge Pohl thought that the blanket application of this review was decidedly not evenhanded, viewing it as punishing attorneys who played by the rules for the violations of those who did not.  He also expressed concern over the policy memorandum under which the review was justified.  Judge Pohl believed that the May 19, 2008 “Buzby Memo,” named after the then-JTF Commander Rear Admiral Mark Buzby who issued the directive, provided an overly broad definition of “contraband” that would even include communications about the detainee’s case.

Only after considerable argument from both sides did the government’s true concern become clear.  Lockhart and Welsh seemed unable to communicate to Judge Pohl that various defense counsel—apparently including al-Nashiri’s team—had been sending their clients materials such as magazines and newspapers and marking them as attorney-client privileged communications.  While defense lawyer Richard Kammen seemed to want to argue that these items should be protected by the privilege, as they help build rapport between defense counsel and the detainee, he never quite went that far.  Indeed, such a position likely would not have gone over well with Judge Pohl.

Judge Pohl’s ruling on the motion was fairly favorable to the defense.  He concluded that the review violated the attorney-client privilege and granted the defense’s motion, “as follows”: (a) the defense will clearly mark correspondence, envelopes, and individuals pages.  Judge Pohl made clear that he was referring to mailed letters or other type-written communications, not magazines or similar material; (b) JTF personnel may review these materials for those markings; (c) improperly marked mail may be seized; (d) failure to comply with the marking scheme by the defense will result in Judge Pohl’s revisiting this ruling upon application by the government.  Judge Pohl added that the government may offer an alternative procedure that he will consider upon application.

Setting the Trial Date/Outstanding Discovery Issues/Recess

After concluding the motions hearing, Judge Pohl also wrapped up a few other outstanding issues.  First, he asked trial counsel when it would be ready for trial.  Although Lead Trial Counsel Anthony Mattivi originally submitted a trial date of February 2, 2012, Kammen stated that the defense would need a delay of at least a year.  Mattivi did not object, provided that this constituted a “hard and fast” waiver of section 707, which relates to speedy trial rights, and Kammen stated that it did.  As such, Judge Pohl set the trial date for November 9, 2012.

Pohl and Kammen then discussed the need for a discovery hearing in January.  Though Kammen initially suggested that a telephone hearing would suffice, Judge Pohl noted that he likes hearings in person and stated that he thinks it is fair for the accused to see things going on.

Before adjourning, Judge Pohl discussed one final issue with al-Nashiri.  He explained al-Nashiri has the right to be present at future hearings, but that the hearings will continue if he chooses to not attend.  Al-Nashiri responded, in Arabic, “I think I will attend all the sessions.”

With that, Military Judge Pohl recessed the commission.