10/24 Motions Session #1: Those Best Situated to Testify About a Search of Al-Hawsawi's Cell

The lights dim at Smallwood.  There’s some grainy imagery here, some white noise there, as the military judge affixes his lapel mic and resumes the pretrial session at Guantanamo.  Four accused are in the courtroom, though a fifth, Mustafa al-Hawsawi, is not.  His absence triggers the usual script: the prosecution asks a witness, LTCDR George Massucco, the Staff Judge Advocate, whether Mr. No-Show was advised of his rights, and the consequences of waiving them; and whether he knowingly and voluntarily waived those rights anyway.  The witness says yes and yes, and the court finds the absentee to be lawfully so.  Off we go.

Our journey takes us once more to Massucco.  His testimony today will bear on at least three long-pending defense motions.  Two seek the case’s dismissal, one on account of resource shortages experienced by the defense before the case’s referral (AE008); and another on account of unlawful influence exerted by political figures and others, which undermined the presumption of the accuseds’ innocence (AE031).  Still another challenges alleged invasion of confidential and privileged defense communications, by JTF-GTMO staff (AE032).

The latter prompts Al-Hawsawi’s attorney, CDR Walter Ruiz, to begin questioning Massucco about searches of Al-Hawsawi’s legal bins.  When asked, Massucco tells Ruiz that he does not order any searches; his role, instead, is reactive.  The February search of detainees’ legal materials, in particular, is on Ruiz’s mind.  Massucco learned of this during his first week at GTMO; he’s testified about it previously.  Moreover, in response to Judge Pohl’s order, he brought some seized documents (including ones seized from Al-Hawsawi) to court.  Where did Massucco retrieve them?  From an evidence custody room, answers Massucco.  The witness adds that seizure encompassed not merely legal items, but also contraband.  Ruiz asks, and the witness agrees, that the universe of seized items was larger than Massucco thought originally.  He learned about the disparity later, when Al-Hawsawi, in March, complained of some additional missing items.  This confused Massucco. After all, he thought his crew had retrieved, and returned, the complete set of seized items.  Massucco was surprised, he says.  But at any rate, JTF-GTMO eventually found the missing stuff, and returned it, too.  

Ruiz had asked Massucco, in a meeting at the time, why the privileged, properly marked items had been taken from Al-Hawsawi’s cell.  The witness recalls this, and says now what he says then: he doesn’t know why Al-Hawsawi’s items were taken.

So what of the additional, seized stuff?  Ruiz shows one such document to Massucco, who agrees that the item is legally privileged.  We see it on the screen at Smallwood; the phrase “PRIVILEGED COMMUNICATION ATTORNEY-CLIENT COMMUNICATION” can be seen plainly at the page’s top.  The witness recalls discussing a document like this with Ruiz, after the February search.  But he can’t be sure this is the item the pair talked about; at the time, Massucco was striving not to peep into privileged material that the guard force had taken from Al-Hawsawi’s cell.  It was a heated, pointed discussion, the witness acknowledges Ruiz.

The court: where are you going with this, counsel?  We’ve heard testimony about the February bin toss before.  The lawyer in protest: I’ve never gotten answers as to who seized the items in February, and why.  For example, did intelligence personnel direct the search? Massucco doesn’t know, though he understands that the guards conducted the search for security reasons.  The witness likewise doesn’t know which particular guard rummaged through Al-Hawsawi’s cell.  It would have been the Watch Commander on duty at the time or his Assistant, surmises the witness.  Massucco explains further: the documents were not sitting out, in plain view, but instead were contained in an accordion file, in Al-Hawsawi’s cell.  Ruiz: so guards took an accordion file without looking at the contents?  Now the court intervenes: do you know why this particular item was taken from Al-Hawsawi?  “No,” answers the witness.

Ruiz adds a follow up about some seized sheets of yellow notebook paper, which had been torn from Al-Hawsawi’s legal pad.  Much as before, Massucco disclaims specific knowledge about who did the tearing.  Later he spoke to the fellow who performed the search, Massucco explains, though he doesn’t know that it indeed was that person who yanked the sheets out. (To Ruiz, it is clear that Al-Hawsawi didn’t tear the pages, and further that the guards did.)   It turns out that the ripped-out sheet mentioned, among other things, a “motion for unlawful command influence.”  The back and forth illustrates the growing divide between counsel and witness.  The latter insists Al-Hawsawi complained that certain documents had been seized, though they later were returned; and further that Massucco later discussed the documents in question with Ruiz.  Again, the pattern can be discerned, as Ruiz seeks to refresh Massucco’s recollection, and Massucco disclaims specific memory while accepting Ruiz’s suggestion that, yes, privileged documents were seized.

Prosecutor Jeffrey Groharing objects on relevance grounds. Ruiz’s temperature visibly rises, as he doubts whether the government would stipulate to the improper seizure of legally privileged stuff.  The court thinks that much is clear already; ditto Massucco, who once agrees that properly stamped items were seized, so far as he knows.  The exchange prompts Ruiz to air frustration. His motions to compel---for guard force folks and bin-searchers, all of whom know specifically what transpired vis-a-avis Al-Hasawi---have been denied.  It’s something of a circular discussion, one seemingly incapable of getting to the factual issue in play.  Ruiz complains that the court has refused his effort to bring guards to court; meanwhile, the court counters that Massucco lacks sufficient knowledge to testify as to who seized specific documents and why.

The court wonders aloud about what seems to be a foundational issue: is there evidence sufficient to support Ruiz’s claims about what JTF folks took from Al-Hawsawi’s cells?  Judge Pohl says he suspects that no witness can establish what was seized, apart from defense counsel and client. At any rate, Groharing is willing to agree that Al-Hawsawi’s materials were, in fact, seized---though he leaves open the legality of the seizure and the documents’ markings.  Ruiz, incredulous, rejects the court’s suggestion that the guard who took his client's belongings couldn’t testify as to what he did.  The angry judge retorts: you, CDR Ruiz, doubted the foundation here.  In any case, Ruiz carries on, his questions designed to show just how much he needs to explore now, from a factual standpoint.  Will the prosecution stipulate to the search’s unlawfulness, and to the search’s initiation at the behest of intelligence personnel?  Nothing speaks to that in the record, Ruiz argues.  That’s why he’s raising these issues now. Whoops: recess time.