6/19 Motions Session #5: How the Woods Order Worked

We return from lunch curious about whether video teleconference issues have been resolved.  That would allow us to hear from Admiral David Woods, former commanding officer at GTMO, once again.  It turns out that the issues have been resolved, and we will hear from Woods, after all.

J. Connell III resumes where he left off---with details on Woods’s December 2011 order regarding attorney-client communications.  It was issued in light of a related order from the military judge in Al-Nashiri, and meant to create a common understanding of what communications were and were not “privileged.”  The definition of privileged information, Woods explains, encompassed court filings and other documentation between attorney and client. Oh really?  Connell holds up a court filing from the Al-Nashiri case---with a note scribbled across the top indicating that it is a non-privileged document---would the Admiral consider this to be privileged information under the previous order? It wasn’t properly marked, he answers, and thus would be treated as not privileged. But under the new order, though, it would be so considered, given its substance. We can see where the lawyer is going: divergent analyses of the same document, one examining content and the other considering its exterior markings. It’s arbitrary-seeming.  So which is correct? Woods again says the document would be returned to defense as improperly marked; if properly marked, it would be permitted.

Woods explains that the military commission privilege team concept was modeled on a similar team created during Guantanamo habeas litigation. Before the December 2011 order, there was no privilege review team for the military commissions; it was instead the responsibility of the Convening Authority to bring the team into existence.  Despite efforts, no team was established before Woods’s departure, in June 2012.

More follows, from Connell, on what was allowed during attorney meetings.  Who was permitted to deem items contraband besides yourself? My designees, Woods responds, including SJA office staffers, exercised delegated authority to review materials and deem them contraband as appropriate. But, the witness goes on, if defense counsel sought an exception to a contraband determination---prior to the commencement of litigation before the military commission, of course---then the lawyer could appeal to the commanding officer of GTMO.  That is, to Woods himself.

Connell wraps up his questioning, and is replaced at the mic by KSM Learned Counsel David Nevin. Nevin inquires about Woods’s order’s definition of “contraband.” Woods’s staff drafted the “contraband” language, he explains, but Woods reviewed and wordsmithed it per his longstanding practice. He also sought review from the Chief Defense Counsel, among others, prior to issuing the final order. In considering whether to reject questionable materials as contraband, Woods had full discretion to determine what might pose a risk to the national security. But, the witness reaffirms, material always might qualify for an exception, if the attorney claimed a document’s direct relevance to the representation.