6/17 Motions Session #2: Admiral MacDonald Returns

Now joining us by video teleconference (VTC) is retired Rear Adm. Bruce MacDonald, who was the military commissions’ Convening Authority from March 2010 until his appointment expired in March 2013.  Today the witness will continue to testify on matters raised by the defense in AE008 and AE31, its motions to dismiss the case for defective referral and for unlawful influence, respectively.  Mustafa al-Hawsawi’s lawyer, CDR Walter Ruiz, picks up where he left off in questioning MacDonald during the case’s last session.

The lawyer’s topic? Rear Admiral David Woods---then GTMO’s chief---who in December 2011 issued orders regarding legal mail and access to detainees.  MacDonald understands that Woods there balanced the attorney-client privilege and other rights of detainees, while also precluding the introduction of contraband to the camp.  Ruiz is most interested in the precedent for that.  What about a draft protective order, earlier fashioned by MacDonald, in March of 2011?  It touched on similar matters.  The witness says he authored the order, which was meant eventually to govern (among other things) attorney-client communications in commissions litigation, but delayed the order’s implementation until March 21, 2011.  This document was modeled on instruments used in the Guantanamo habeas cases, MacDonald says.  Ruiz refers MacDonald to the Woods order.  The operative provisions in MacDonald’s draft---those regarding the “privilege team,” for example---are quite similar, acknowledges the witness, though he hasn’t done any side-by-side comparisons.  The protective orders were about the introduction of contraband, MacDonald reiterates, not any desire to regulate the attorney-client relationship or legal mail.  Still, he agrees that both he and, later, Woods addressed both matters---MacDonald in a draft protective order, Woods in his December 2011 orders.

Ruiz: and your protective order, like Admiral Woods' instructions, insisted that lawyers speak with their clients in the same language, during meetings?  MacDonald agrees that it did.  But why?  Most of us don’t speak Arabic, says Ruiz.  The rationale was to permit defense lawyers to supervise their subordinates.  Upon objection by OCDC, MacDonald agreed to drop this provision, in the event that MacDonald’s---draft---order went into effect.  We discussed defense problems with the draft order thoroughly, says the witness; I asked the defense to set forth their gripes in writing.  Ruiz pushes.  Didn’t your order also provide for monitoring and recording of attorney-client communications---telephone discussions, specifically?  It did, says MacDonald, who notes that the rule nevertheless didn’t touch on attorney-client visits.  Do you see any difference, so far as privilege goes, between a telephone call and a visit?  He does, when we’re talking about a detention facility. A phone call from D.C. to GTMO could have unknown parties---who knows who might be taking part besides lawyer and detainee? And, MacDonald adds, counsel didn’t have to use the phone at all---they could always visit.  Okay, Ruiz continues, then why record the call?  The witness doesn’t know why.  When asked, he says he knew that intelligence personnel were interrogating detainees during his time as Judge Advocate General of the Navy.  (Ruiz refers here to the witness’ congressional testimony, in 2006 which MacDonald doesn’t recall offhand.)

At the direction of the DoD General Counsel, a subordinate in MacDonald’s office, Michael Breslin, addressed defense counsel’s objections in developing a protective order to be issued by the JTF.  Apart from this effort, in Summer 2011, the witness’s group had no involvement in the genesis of Admiral Woods’s orders (MacDonald doesn’t know whether the document Breslin passed on to JTF GTMO was the same as his draft protective order, or whether Breslin revised his draft language.)  He adds once more that the drafting process was designed to reflect an order already blessed by federal judges in habeas cases.  The trouble was that, as all know, there was no judge to apply to, at the time, in the commissions.  And MacDonald doesn’t recall physically separating the habeas and commissions privilege teams---a subject about which Ruiz questions him briefly. We're in a quick recess.