Thoughts On Judge Pohl's Order and Ruling

By Benjamin Wittes
Thursday, February 23, 2012, 11:03 AM

I have two thoughts on Military Judge James Pohl's order and ruling, which I have now read.

The first is that on the narrow issue of the appropriate procedure for screening mail, this is largely a win for the defense. As Ritika and I explained at the time of the argument, the prosecution was urging Judge Pohl to incorporate the privilege team adopted in Rear Admiral Woods's December 27 order (a team which is walled off from the prosecution) not just to screen material sent to Al Nashiri by his lawyers for physical contraband but also to take a quick look at even material marked as privileged and verify that it was not informational contraband. It specifically argued that a parallel screening order that governed attorney-client written communications in the habeas cases was inadequate because it did not explicitly permit this type of screening. The defense, by contrast, conceded that there would be screening for physical contraband but insisted that the PRT should not read written material the attorneys send their client but should look no further than the stamp that says the material is privileged.

Judge Pohl's ruling gives the prosecution certain elements of what it was defending in the December 27 policy. For example, it endorses the concept of the privilege team, maintains the categories of communication the government had established, and importantly, by ruling on the issue at all, it obviates the defense's contention that it would be unethical to submit to screening of mail. Yet on the key disputed point, Judge Pohl's ruling seems to me clearly to side with the defense:

g. Defense counsel's verbal communication with the accused in the detention facility is not monitored or screened by JTF-GTMO. In essence, JTF-GTMO must trust the defense counsel not to violate their non-disclosure responsibilities when discussing the case with the accused. The Commission finds no reason that similar trust should not be accorded defense counsel in their written communications with the accused.

. . .

i. As discussed in the attached order, review of written material by the PRT will be limited to review of appropriate markings and scanning for classification marking. To permit the PRT to review for "plain view" violations of the contraband prohibition could require a further reading of the document potentially violating attomey- client privilege.

j . The government has made no showing why the additional "scanning" procedures are necessary. JTF·GTMO has functioned under the procedures of the habeas order since 2008 with no apparent difficulty. The Commission fails to see why more intrusive procedures are now necessary (emphasis added).

There is, of course, some give here insofar as the permission to screen for markings and classification stamps implies some measure of "plain view" review--even if the order forbids any deeper look at the text of a communication. That said, the order on this point is centrally concerned with preserving the defense's interests. And the defense, to put it simply, has gotten pretty much the protection it sought.

My second thought is that the defense's win here highlights just how much commission critics are jumping the gun analytically in their zeal to strangle this institution in its crib. Consider my earlier exchange with Laura Pitter of Human Rights Watch over our respective observations from the last round of Al Nashiri motions arguments. Pitter had not waited for Judge Pohl's ruling on the mail issue to use it to condemn commissions as profoundly different from federal courts:

nearly every substantive issue litigated in Guantanamo this week would never have arisen in civilian court. For example, the defense asked the judge to order the military to stop reading mail marked attorney-client privileged. In a federal prison, while mail might be inspected for physical contraband, a warden wouldn’t read clearly marked legal mail to determine if it was truly a privileged communication.

Leave aside for a minute that, as I pointed out at the time, Pitter is wrong here about the outer edge of practice in the federal system. She also turns out to be wrong about military commission practice. As I pointed out at the time,

it’s not even clear . . . that the government will get what it is asking for. The state of play as of this week’s hearing is that the Military Judge has asked the defense to draft an order that will satisfy its concerns–presumably by allowing inspection only for physical contraband–and the government to respond to that proposed order. So it is by no means clear that the government will be permitted to do anything in the Al Nashiri case that it could not do with a detainee facing trial in the federal system.

Had Pitter waited for the issue to resolve itself, she might have discovered that the commission process is actually more capable of satisfying her concerns that HRW's strong institutional position against commissions allows it to be.

The point is that it's time for a change in the methodology by which critics evaluate the commissions. For years, critics have condemned the commissions by imagining the worst thing that could possibly happen under the MCA and the commission rules if all the prosecutors were evil, all the judges were stupid, and all the defense lawyers were hapless or shackled. It's time instead to start evaluating the commissions as though they were actually real courts. In a real court, we look at what actually happens--how issues play out in fact and whether or not the outcomes are reasonable and fair. We don't imagine what could happen; we evaluate what does happen. We don't confuse a government brief with a disposition. And we generally wait for a judge to rule before proclaiming an injustice.

My modest submission: Human Rights Watch and other commission critics will save themselves future error and embarrassment if they show the commissions this modicum of respect.