8/21 Motions Session #9: "Contraband"

The prosecutor Edward Ryan stands at the mic as the judge reconvenes the commission.  Visibly impassioned, Ryan presents the government’s argument on AE018. He mentions some attention-grabbing examples of contraband---a pen ink refill which was found in a detainee notebook, an issue of Inspire which contained bomb-making instructions, and was shipped into the camp as legal mail  All these emphasize the high stakes, and weigh in favor of the government’s draft of the order, he says.  Even more so, your honor, given the responsibility to ensure national security, which falls on the government alone. Ryan starts to tout the Al-Nashiri communications order, and its effective implementation in that case, as reason to apply that same order here.  But the Judge doesn’t want to go there: Al-Nashiri is not before me, counsel.  Ryan then highlights the lack of balance in the defense’s alternative draft, and the cost of implementing one regime in Al-Nashiri, and another regime in this case.  Will JTF staff really enforce two entirely disparate communications regimes?

Ryan performs a side-by-side of the government’s and the defense’s competing provisions, starting with the rules for “contraband.” Citing Nevin’s concerns, Judge Pohl wants to talk about one particular definition, regarding current political and military events, jihadist activities, and so forth. Would the order be over-restrictive here, by deeming items in the charge sheet, and the like, to be “contraband”? Let’s re-word the proposal, Ryan replies, and add a caveat which would allow such materials if, indeed, they are relevant to defenses in the case. So why not go with Nevin’s language here instead, the judge wonders aloud---that’s precisely what Nevin has in mind. Still, Ryan maintains that Nevin’s re-work is overly inclusive, and reserves far too much leeway to defense counsel.  That’s unacceptable, in the government’s opinion.

The prosecutor ticks off many more of the defense’s mis-edits---one of which, as above, vests total discretion in defense counsel to determine what is privileged.  Obviously, merely placing a cover letter containing an attorney’s attestation of privilege is not sufficient to protect the national security, he points out. Ryan also expresses great surprise at defense counsel’s interpretation of GTMO habeas procedures for written communications. Contra Nevin, these didn’t at all bar content searches of mail, and indeed left it to the JTF commander to define what counts as “contraband” in his camp. After running through a few more provisions of the habeas court’s procedures, Ryan wraps up: the district court’s approach in habeas cases actually mirrors---and thus weighs in favor of---our draft communications order, not the defense’s.