12/18 Motions Session #2: More on Meetings

Bormann and Bogdan resume their discussion of procedures governing attorney-detainee meetings.  The former has challenged them; the latter defends them.

The witness generally limits visitors to five total, for safety reasons, but allows larger-group meetings from time to time. It’s a surprise for Bormann, whose visit request this past Sunday---on behalf of six defense members---was denied on size grounds. But Bogdan didn’t know about this; standard practice, he says, is that exceptions to size rules must be approved by him personally.  At any rate, the lawyer sees pretext in the witness's claimed “safety” rationale, observing that Guantanamo's high value detainee ("HVD") meeting rooms don’t have any functioning smoke detectors, but do have flimsy, accident-risking furniture.

This critique of current policy prompts the court to asks: so what do you want, counsel? A more reasonable regime, answers Bormann, with flexibility for exceptions (and the granting of exceptions when warranted), and access greater than that permitted currently.  In particular, Bormann has in mind weekend and evening hours, which are presumptively not available for HVD-lawyer sessions at GTMO. It boggles Bormann’s mind that she can’t land at the base and meet with her client on the same day, because visits aren’t permitted after 4 p.m. How can that be, when the camp’s mission is allegedly 24/7? The right to counsel is too critical, she underscores, but the current setup doesn't vindicate it.

Bormann tags out; KSM’s attorney, David Nevin, tags in.  Nevin asks Bogdan, among other things, about his standard operating procedure (“SOP”) for attorney-detainee meetings.  It seems this might not reflect other policy documents prepared by GTMO lawyers, in that the final SOP permits groups of one size (detainee plus up to four) to meet with detainees; the latter had thought differently, initially (and allowed meetings between detainee plus up to five). So how many people really get to meet with detainees at Echo II?  Nevin next picks at descriptive language used in Bogdan’s orders, so far as they concern various detainee counsel---habeas, commission, and so on.  The witness reiterates that he doesn’t distinguish between categories of lawyer, despite the language of the SOP.  Lawyers are lawyers, for meeting purposes.

More subtlety: when asked, Bogdan tells Nevin he differentiates between detention facilities and prisons (he’s served at the latter previously, in Germany).  But Bogdan doesn’t accept Nevin’s suggestion that unlimited counsel access is allowed in Army prisons---those have set visiting hours, he says.  Upon assuming his Guantanamo command, Bogdan studied federal prison practices and visited the ADX prison in Colorado and MCC prison in New York. The visitation protocol at GTMO, he says, is similar to (though not identical to) protocols employed in those jails. A few questions and answers follow---we learn that not all guards at Camp Seven are TS/SCI cleared, among other things---and Nevin is done.

Next we hear from Bin Al Shibh lawyer James Harrington. He suggests, and Bogdan agrees, that Bogdan has the authority to rework guards' schedules, so as to better accommodate defense counsel's scheduling requests---but his resources are not unlimited, and thus his scheduling flexibility isn't, either.  Al-Baluchi’s attorney, Lt. Col. Sterling Thomas, rises.  He asks how many additional personnel would be required, from Bogdan's standpoint, in order to handle a “surge” in commission activity---lots of meetings, hearings, and so on.  This draws an objection on what appears to be force protection grounds, which court ultimately sustains. Thomas touches on a few more topics, including the reasonableness of Bogdan’s 14-day general requirement for scheduling visits.  The witness says he considers special requests that don’t meet that deadline.

Lunch now---see everyone at 13:15.