12/18 Motions Session #1: Meetings

Game on.  The parties are seated as Army Col. James L. Pohl, the military judge, ascends the bench.  Four accused are here but one is not: Ammar al-Baluchi.  That means a voluntariness colloquy, and ultimately, a judicial finding that the detainee knowingly chose to skip out today.

We begin with the defense’s effort to compel JTF-GTMO to permit certain detainee-client meetings, an issue raised earlier in the month by lawyers for Walid Bin Attash.  In short, his lawyers had sought emergency help from the court, in attempting to set up December meetings; those didn’t happen, according to the defense, despite diligent efforts and compliance with GTMO rules.  Central to the dispute is testimony from Col. John Bogdan, the Joint Detention Group Commander here at Guantanamo.  He is sworn in.

Before Bogdan can be questioned, though, Ramzi Bin Al Shibh interrupts in English and says he wants to leave.  Angrily he lambastes the court, for doing nothing to address his lack of sleep, and the vibrations to which he has been subjected by the guard force.  And if, in the detainee’s view, Judge Pohl has no power to put a stop to the JTF’s abuses, then Judge Pohl must resign. “This is my life,” cries Bin Al Shibh. “This is torture. Tor-ture. You have to stop the sleep deprivation and the noises!”  All the while, the military judge is warning the detainee, instructing him to stop.  But he doesn’t, and quickly is escorted out for the third time this week.

Back to Bogdan, and questioning by Bin Attash attorney Cheryl Bormann about whether  officials unreasonably block defense counsel from meeting with high value detainees (“HVD”) in capital cases.  The pair discuss the particulars surrounding HVD meeting facilities, including Bogdan’s asserted ability to handle a maximum of six HVD visits at a time. The lawyer refers to a standard operating procedure (“SOP”) regarding legal visitation, one seemingly authored by Bogdan; this allows for visits, with fourteen days’ notice, and usually disallows meetings requested within that time frame.  That’s the problem for Bormann, who obviously doesn’t live at Guantanamo, and who cannot control the ever-changing flight schedule to the camp.

Bogdan agrees that, under his orders, meetings are generally not permitted after 4 p.m., or on the weekends or holidays---special visitation is allowed for habeas counsel on weekends or holidays.  Well, why not do the same for commission counsel in a capital case?  Its an absurdity.  Bogdan insists that such an exception exists---and that he grants visits during commission sessions---despite the text of the SOP.  (“Habeas,” to Bogdan’s eye, is just shorthand for “lawyers” generally.)  Then why, asks Bormann, did JTF deny a meeting request for Bin Attash in December? He doesn’t know, but tells the military judge that his office does not distinguish among the various kinds of detainee counsel, save only for his preferential treatment of counsel during hearings in their cases at GTMO.  He adds that he uses a first-come, first-served sort of approach.  If he’s down to one meeting area, he doesn’t buck habeas counsel who have a previously set meeting, when commission counsel later request an urgent meeting with their clients.  

In October, Bormann had sought, and been refused, a weekend visit with Bin Attash. Bormann shows a not-yet-recalling witness her side’s memorandum, that afterwards set out her side’s initial justification for the meeting: the idea was to have additional time, in order for counsel to prepare for a crucial, next-day investigative trip overseas. Now the witness recalls the substance, but can’t remember exactly why he refused Bormann’s request, both initially and after her memo’s submission. Maybe he had other operations on going; maybe the camp’s meeting spaces were totally booked. He’s in any event not surprised that he said no this time around. Bormann’s astonishment is evident, as the witness stands by his decision---though we learn that Bogdan eventually reversed course after Bormann sought court help.  Ultimately, Bogdan allowed counsel additional time on Friday evening and some part of Saturday.

What about a weekday visit, in December?  Bormann had asked for that and didn’t get it, either, just as before. This time Bogdan explains that meeting facilities were all reserved during Bormann’s desired dates.  Still, the lawyer suggests that Bogdan’s staff sat on this request for a week, denying it only the week before the Thanksgiving holiday; Bogan isn’t aware of the snafu, but remembers there being availability just after the dates requested by Bin Attash’s counsel.  As for those, Bormann tells the witness she emailed and called repeatedly, in order to arrange a session---but that this outreach was ignored.  Bogdan isn’t aware of that either, but insists there were other detainee visits ongoing.  It’s first-come, first-served, the witness reaffirms. After a time, the military judge asks: couldn’t Bogdan prioritize HVD meetings for capital defense counsel?  Nothing would prevent that, in the witness’s view.

With that, Bormann confronts Bogdan with an email, in which a subordinate had claimed that camp officials denied meetings during commission sessions across the board. The witness calls this inaccurate; he explains that his staff’s “default” is to assume a detainee’s attendance at a scheduled court proceeding; only upon hearing otherwise---usually just before the proceeding itself--- can his group arrange for a commission accused, who doesn’t wish to come to court, to meet with lawyers.