5/31 Session: Contraband and the PRT

Today is the second day of this set of commission hearings. Bin’Attash and al Hawsawi are not present, though KSM, Binalshibh, and Ali are. Also present are all of yesterday’s defense counsel; apparently Bin’Attash decided not to fire his (female) attorney.

The session opens with the request of the defense counsels representing Hawsawi (Lt. Col. Gleason) to modify some of the requirements and procedures of the Privilege Review Team (PRT), established to ensure dense counsel was not bringing contraband into Guantanamo and to the detainees through the guise of privileged communications. For examples, if the lawyers brought in bound books, they were required mark and stamp every single page in the book; defense counsel now request that the markings just be required on the first page. Defense counsel also request that the requirements to mark all material as releasable to the detainees be eliminated and that the order be clarified so that it was clear PRTs had to review (and not just reject out-of-hand) electronic media. The prosecution has agreed to these requests.

However, the prosecution opposes the final three requests: that the PRTs be walled off from consulting with the Guantanamo Staff Judge Advocate’s office for guidance on its work; that previously reviewed materials don’t have to go through re-review by the PRT when the PRT isn’t working; and that the requirement to review the client’s notes be eliminated, since his notes, which are generated inside the camp, could not logically represent an effort to bring contraband into the camp.

After all defense counsel have the opportunity to make their arguments, Mr. Trivett chimes in for the prosecution. He clarifies that the government is opposed to barring the PRT from performing logistical coordination with the SJA, but that the government is not opposed to a ban on the sharing of any content the PRT learned (which he asserted was the rule already effectively in place). Mr. Trivett also argues that the current PRT re-review process is the most efficient and protective way to run the review process. Finally, Mr. Trivett argues that the rules on detainee notes are currently sufficient because re-review was not, in fact required, and there isn’t any reason to “disrupt the apple cart” by making unnecessary changes that could add “additional confusion” to the process.

The commission then adjourned; the transcript from the next session is not available.

The third session of the day opens with the continuation of what appears to be a discussion on whether the government would be allowed to take victim impact statements in the form of public depositions. KSM’s attorney Mr. Nevin argues that even if the depositions are allowed, they should not be done publicly, as they would not be admissible during the guilt phase, but their public taking sends a message that there will actually be a sentencing phase.

Ms. Bormann argues the same point, adding that this is simply an (unnecessary) attempt by the prosecution to influence and prejudice the panel hearing the case. She also argues that the depositions, if performed, should be done at locations convenient to the witnesses/victims, rather than requiring them to fly to Andrews Air Force Base and Guantanamo Bay. Finally, she argues that victim impact depositions were wholly inappropriate under court and commission rules; the fact that neither side could point to a case where one had been done indicated that these were extraordinary measures that at the very lease should involve “serious precaution[s]” to avoid having to give after-the-fact curative instructions.

Mr. Harrington makes similar points, emphasizing that given how difficult it will be to find an impartial panel, there is no point in adding extra complication. Mr. Harrington, however, agrees with the government that the depositions should be taken at Guantanamo Bay. Finally, he notes that the timing of the government’s motion was “just incredible,” coming as it did right before a “national presidential election.” As a result, if the depositions were going to be “public, it should be public,” but he questions the judgment of “requesting that it be done at this particular time.”

Mr. Connell then rises to make two new arguments. First, he does not think that a demonstration that a witness was 65 or older or a demonstration of general health concerns was enough to establish that the individual was likely to be unavailable at the time his live testimony would be required. He also argues that Rule 702 does, in fact, require the admissibility of the testimony — and specifically of the questions to be asked — to be litigated in advance of the depositions.

Ms. Bormann then takes an opportunity to chime in again with some information she had received from lawyers in the Moussaoui case. First, she notes that the judge there had limited the number of witnesses. She also notes that there had been a proffer in advance so that the defense would learn the lateral limits of the victim’s testimony. Ms. Borman and Col. Pohl then have a discussion about how they would deal with videotaped situations where the victim got carried away and ignored the rules of the deposition.

Mr. Ruiz then rises to clarify the position of his client, Mr. al Hawawi regarding the arguments. First, he states that they do not object to the preservation of testimony, but that is distinct from fulfilling the victim’s goal of having their voices heard, which they do object to. They therefore object to the depositions being public and to them being performed in the Guantanamo courtroom. The commission then recesses for lunch.

Mr. Ryan opened for the government after lunch, stating that the government had already confirmed that the ten victims identified to give statements had already confirmed that they would be able to travel to Guantanamo Bay to do so and that they knew it would be public. He clarifies that the requested October timing was selected because they “want this to happen as soon as possible.”

After Mr. Ryan concludes, KSM tries to chime in and is shut down by Col Pohl. Mr. Nevin confers with his client and states that KSM finds the overruling of his counsels’ objections to Mr. Ryans lengthy discussion of September 11 unfair. Mr. Nevin also noted that KSM didn’t understand the translation of “deposition” and objected to not having an interpreter sitting with him to explain (translation is being provided through an ear piece).

The commission then moves on to the next motion, argued by Mr. Schwartz. But before he moves into his next argument, he wants to discuss an exhibit he is adding to the collection relating to the PRT process of review and marking documents. Mr. Schwartz appears to be requesting that the judge enforce his order that the government provide physical copies of discovery material. The government responds that this is not feasible in a case where they have provided 330,000 pieces of paper, and that the government’s workaround of providing the material on an e-reader complied with the court’s order. Mr. Schwartz stands at the end to request the documents on a laptop, which the government claims it will provide on request.

Mr. Nevins moves on to the next issue, which is a request to get to the bottom of the prosecution’s allegations that defense counsel have broken certain rules. The discussion here is brief.

Next, Mr. Ruiz argues a motion to compel witnesses about the seizure of Mr. al Hawsawi’s privileged attorney-client communications. Mr. Ruiz recounts the last time the parties litigated this exact same issue over different documents, arguing that unless Col Pohl holds the JTF personnel responsible and accountable for these violations, they will simply continue to happen. Mr. Swann argues in response for the government that it is not necessary to compel witness testimony when the commission has sworn statements explaining exactly what happened and why. Ultimately, he argues, these were routine cell inspections where unmarked materials were confiscated, marked, and returned. Any problems (which sometimes arise when dealing with new teams) were corrected. Mr. Swann is displeased; the whole point is not to take the prosecutor’s word for how these procedures work, but to subject the people themselves to cross-examination.

After a brief recess, the parties discussed some logistical and administrative matters. Col Pohl notes that the CY2017 schedule will be put out this week. After some additional discussion of the 2016 and 2017 schedules, Mr. Sowards argues a motion for reconsideration of a denial of a discovery motion filed in September 2013 regarding governmental monitoring of attorney-client communications.

He first provides a recap of defense counsel’s investigation of that incident and monitoring on Guantanamo generally, concluding that the government has been stonewalling the defense’s investigative efforts. Though the commission had denied the motion for additional information, today Mr. Sowards argues that decision should be reconsidered. Counsel has reason to suspect their communications are still being monitored today and that they need to be able to perform their own due diligence to ensure they are speaking to their clients in confidence.

Ms. Bormann makes some clarifying points emphasizing the shallowness of the investigation they had been allowed to do. Mr. Connell then discusses two developments justifying reconsideration: updated schematics of the electronic systems, and the fact that the court is currently litigating whether the CIA is a party to the proceeding, thus making the CIA’s potential eavesdropping a material issue.

Mr. Ryan responds that all necessary steps have been taken to ensure no violation of the privilege and that there is thus nothing else to litigate here. Mr. Sowards responds that the prior testimony was incomplete; that information that had come to light suggested that despite the assurances, the monitoring was still going on; and that the parties who testified were not even fully informed as to what the recording equipment was being used for.