10/24 Motions Session #3: More Massucco

Lunch is done.  The buffet and fixin’s are put aside here at Smallwood, as attention returns to the CCTV screen, and CDR George Massucco once more in the witness stand.

Prosecutor Jeffrey Groharing questions Massucco.  Generally, have attorneys been able to send privileged materials to detainees?  Yes, he says, by presenting materials to the privilege team, who in turn provide them to the defense courier; who in turn ferry the materials to Massucco; who in turn gives them to the detainee.  And despite its forswearing of the legal mail channel---per orders issued by the Chief Defense Counsel---the defense has used the privilege team procedure.  Ruiz objects; Groharing responds that the exchange goes to past claims, by Bormann, that Bin Attash had feared monitoring of his legal mail.  The objection is sustained.  Fine, says the prosecutor.  Has Bin Attash complained about his ability to send stuff to his attorneys?  Yes, Massucco says.  But to Massucco’s knowledge, since the baseline review, privileged attorney client materials have not been reviewed for content.  Nor have privileged materials been passed to the prosecution, so far as he knows.   The prosecutor’s follow-ups draw further objections, which are also sustained.  A word about zip ties.  Can they pose security problems, if strung together?  Massucco agrees that they can.  Groharing is done.

David Nevin rises now.  Will he have any re-direct?  Perhaps not; he’s only today received, from Groharing, documents prepared (apparently) by Camp Seven guards, regarding searches.  Thus Nevin asks to postpone his examination, until he has reviewed the new materials.  The military judge squints a bit, wondering more and more, as the afternoon drags on, about which side’s inquiry, prosecution’s or defense’s, is more irrelevant.  He doesn’t want or need to explore the facts surrounding this unmarked book, or that unstamped printout.  Well, the relevance is there for Nevin: earlier, the witness had said zip ties were threats, and suggested that KSM’s team might have passed on unmarked stuff in violation of camp rules. True, we didn’t raise this in our motion, concedes Nevin.  But we didn’t bring it up in court, either; the prosecution did. The military judge rebuffs Nevin’s effort as implying irrelevant rebuttal to what is (in his view, apparently) already irrelevant testimony about books and blog posts and the like.  The record will speak for itself, Judge Pohl says.  Now Groharing rises, to explain the relevance of his evidence, regarding guard searches and security.  This too provokes the military judge, for the same reasons as earlier. At any rate, yes, Nevin will get some spare time, to mull his re-direct. Maj. Sterling Thomas, Al-Baluchi’s attorney, makes his re-direct now.  He asks about which defense counsel have availed themselves of the privilege team mechanism.  On his client’s behalf, Thomas and company have never used it, Thomas represents. Massucco takes defense counsel’s word for that, but says nevertheless that Al-Baluchi may communicate with counsel through the reverse.  Thomas sits, the court reminding all present not to get into what I’ll call the Migratory Unmarked Document problem. Schwartz stands, on behalf of Bin Attash.  As if on cue, he asks about Massucco’s speculation, earlier, about how unmarked material might find its way into a detainee’s cell.  To no one's surprise, the question irks the already-irked judge further.  Schwartz: the basis for Camp Seven searches of legal bins result from the presence of unmarked non-legal material.  And he adds that Bin Attash’s non-legal stash is swelling in size. Judge Pohl and counsel then debate the need to beat this (for Judge Pohl) dead horse into petroleum.  Still, the lawyer urges: mis-markings, the absence of markings, whatever you call it, all trigger repeated tossing of legal bins, which in turn undermines privileges and undercuts the attorney-client relationship.  That may well be true, says the court, my prior orders address that already.  If you want those orders clarified, so be it.  But I won’t listen to argument, here, about searches of cells or unmarked non-legal stuff.  The gist: the court cuts off this line of questioning, while permitting Schwartz to document just how big Bin Attash’s non-legal pile has become.

As Schwartz sits, Ruiz rises---first to challenge the suggestion, made earlier, that detention staffers hold an unfettered right to search cells.  Now Ruiz distinguishes his client’s privileged documents---those seized from Al-Hawsawi, and discussed by counsel and witness a long time back---from unmarked documents, Twitter printouts, and blog posts.  Massucco goes along with this.  The lawyer then marches through supervisory relationships: the witness wasn’t privy to any decision to search legal materials, or to discussions about what was, and was not, read by guards or others.  That’s correct, Massucco affirms.  Nor can the witness say, for sure, who looked at items seized from Al-Hawsawi.  Defense counsel winds up.

Harrington has no questions, and Nevin’s are postponed until tomorrow.  That means the witness’s excusal.