6/19 Motions Hearing #6: Woods' Words

Crackles can be heard as lapel mics are adjusted and our proceedings are called back to order.  A cell phone detection alert in the courtroom caused our most recent technical outage.  Judge Pohl asks all present to leave their phones behind---lest he implement a “trust but verify” policy.

Nevin resumes his review of the Woods order’s contraband provisions. The lawyer is trying to get at the contraband-work-around as described in the order, which---apparently in acknowledgment of its claimed vagueness---urges defense counsel to seek guidance from the SJA about the difference between contraband and non-contraband. That guidance provision is limited, Nevin believes, to only those situations where an exception is set forth explicitly. But Woods disagrees. The dispute is a big deal to Nevin, given his client’s need to discuss with the attorney certain materials documenting the history of jihadist activities.  They must do so in order to rebut some of the government’s allegations, but apparently cannot under the Woods order---which deems such materials “contraband,” categorically and without exception. Parrying, Woods says he was focused on the safety of the facility, not about the detainees’ counterarguments in their military commission cases.

The witness continues with a stout defense of the exception provision; again, he says, counsel could have appealed to him regarding the erroneous banning of needed items as contraband. But that would mean divulging documents and strategy to JTF, and amount to waiver of the attorney-client privilege, Nevin protests---would the witness then be permitted to share disclosed information with others? I am not required to, but it’s my discretion and responsibility to keep the facility safe, he dodges, before acknowledging again that no, he doesn’t have an attorney-client relationship with any detainee.  Nevin interprets another  provision, this one also not subject to any waiver or modification by Woods: a ban on the passing of information regarding any detention of detainees. That obviously implicates, uh, at least one issue in this case, Nevin points out. You’re aware these men were tortured? Woods, of course, has no personal knowledge of this.  But he naturally would expect that defense counsel would want to talk with their clients about conditions of pre-GTMO confinement. Nevin wraps up.

Enter Cheryl Bormann, Learned Counsel for Walid Bin Attash.  She refers to the November 2011 revision memorandum.  Therein, the lawyer says, you define “privileged” information as “directly related” to the defense, right?  That’s what the intent was, answers Woods.  He meant to align the language with Judge Pohl’s ruling in Al-Nashiri.  The order, moreover, governed both couriered items, as well as items hand-delivered by counsel personally. But markings were not required for materials counsel brought in to a meeting but then taken away afterwards by the lawyer.  She asks about some more items, like pleadings filed in the 7th Circuit in the Vance case, and attached to correspondence between Bin Attash and Bormann, and a request to the Convening Authority during the pre-referral phase.  Each time, Woods says proper marking generally would ensure passing on to the detainee.  But there was a different regime for books and media, which would go through the camp’s non-legal mail channel.  (The latter would include books, like Ali Soufan’s The Black Banners.)  Who made the ultimate decision, Bormann asks, about whether something was “directly related,” and thus privileged?  The burden was on the defense attorneys, says the witness, to establish that.  Perhaps recognizing the defense’s view, Woods also insists that it was not his intent to require lawyers to divulge the contents of communications, in defending claims of privilege.

Bormann asks about the baseline review---about which, according to Woods, the former Convening Authority Admiral Bruce MacDonald never expressed concerns, so far as the attorney-client privilege went.  Nor did Convening Authority staff relay any worries about the review to Woods.  Ditto the Chief Defense Counsel, Col. Caldwell. In fact, the witness only learned of Caldwell’s instruction to defense counsel not to submit written communications, in light of Woods’s policy, from a Miami Herald article.  (Paging Carol Rosenberg.)

Bin Attash’s attorney, like Nevin, doubts the procedure for appealing contraband decisions.  Explaining why a rejected item was, in fact, necessary to her defense of Bin Attash would mean revelation of her case strategy.  Certainly, Woods’s order could have more clearly explained how such an appeal would work. A bit more, and the lawyer is done.