6/17 Motions Session #4: Still More From MacDonald---Will This Be a One-Witness Day?

Earlier, our lunch interrupted live video testimony by Admiral Bruce MacDonald, until recently the commissions’ Convening Authority.  But now lunch is done, and the defense’s questioning presses forward.

First a clarifying note about chronology.  One of Ammar al-Baluchi’s lawyers, J. Connell III, confirms that MacDonald rescinded his draft protective order prior to its date of implementation.  (The order’s effect---or not---will prove important later.)  Then there’s an inquiry about contraband.  The draft order defined this in terms of the JTF-Commander’s discretion, right?  MacDonald agrees, while referring nevertheless to the order’s illustrative---though not exhaustive---list of contraband items.  The latter would call for a common sense determination about what does and doesn’t amount to contraband, whatever the definitional language.  But, Connell pushes, if the JTF-Commander deemed legal mail---or, say, a mitigation submission from counsel---contraband, then wouldn’t that be barred under the draft order? The witness hems and haws, acknowledging the narrow, technical viability of the lawyer’s theory, while still insisting that it would amount to an overbroad reading of “contraband,” as set forth in the draft. MacDonald can’t agree that something considered legal mail could also be deemed as contraband; nor can he accept, as Connell suggests in his questions, that “information contraband” might encompass, say, media reports on the Administration’s effort to close Guantanamo.

Imagine a hypothetical review of legal mail under MacDonald’s draft order---which was, again, not implemented---by a privilege review team.  (This is relevant not merely to the defense motion to dismiss for defective referral, but also to AE18, regarding privileged written communications.)  There’s an objection, and then an extended back-and-forth with Judge Pohl; the court can’t understand why the lawyer cares about procedures promulgated in a draft order that was, as we now know, never given effect. Connell protests, citing the evident relationship between the draft MacDonald order and the final one handed down later, by Admiral Woods.  In the end, Judge Pohl lets Connell proceed.  Okay, how did MacDonald envision the privilege review team to function, under his draft protective order? The team would open the mail in front of the detainee, and check the materials for contraband. After that, the legal mail would be forwarded to JTF-GTMO staff, while non-legal mail or contraband could be either returned to sender or forwarded to JTF-GTMO.

A third subject for Connell is the so-called “baseline review,” and the searching (among other things) of detainees’ legal bins.  What did the witness know about it?  It was a JTF matter, not one for the Convening Authority principally, MacDonald answers.  The latter had been copied on emails between other DOD officials about the review process, which involved a search of detainees’ cells for contraband. That said, the witness agrees with Connell that, if the legal bins were in the cells, they would be searched as well.

(A modest departure from our theme of confidential communications, as Connell inquires not about communications but instead about mitigation information.  What were MacDonald’s expectations as to the content of defense submissions?  He had hoped to receive information, perhaps from the public domain, that went to the question of how the detainees had been treated.  He knew, for example, that KSM had been waterboarded.)

Back to mail, and policies enacted by Admiral Woods in late 2011 regarding written communications.  On those, MacDonald was aware of Judge Pohl’s protective order, in the Al-Nashiri case.  But bin Attash counsel Cheryl Bormann raised concerns about compliance with that order; in a letter, she told MacDonald that JTF had searched detainees’ legal mail bins.  Accordingly the witness says his staff checked with, and received assurances from, JTF staff---who said they were following court-ordered rules.  In fact, MacDonald’s staff compared Judge Pohl’s order with Woods’ memorandum regarding legal mail procedures---but MacDonald cannot recall when the comparison took place.  The defense once more protested by letter, Connell notes, complaining to MacDonald that legal mail and mitigation documents were barred from meetings. But then as before, JTF-GTMO staff claimed strict obeisance to Judge Pohl’s order (which applied GTMO-wide, in all cases, in MacDonald’s view).

Connell filed an amicus pleading in Al-Nashiri regarding the legal mail issue, and MacDonald was aware of it.  Such filing would be an example of a relevant, legal document that would be of interest during an attorney-client meeting, right?  Yes, MacDonald acknowledges.  To that same point, would the witness---himself a lawyer since 1987---expect to share a pleading he authored with an accused, during an attorney-client meeting?  He would. (Embedded in Connell’s questions is the profound and unavoidable suggestion that such items were, in fact, barred from his and other counsels’ meetings with clients.)  In any case, the witness reaffirms: my people looked into this stuff, and reported that Woods-era JTF procedures were consistent with the military judge’s Al-Nashiri order. MacDonald likewise dismissed instructions from the Chief Defense Counsel to his subordinates regarding written communications; in the Chief Defense Counsel’s view, defense counsel could not ethically submit attorney-client communications to their clients, for fear of review pursuant to the flawed and loosey-goosey rules established by Woods. The essence of the Chief Defense Counsel’s conclusion was that non-disclosure agreements, concluded by privilege team members, would not suffice to prevent any waiver of attorney-client protections.  But MacDonald disputes that---he testifies on the contrary that a non-disclosure commitment would be enough to satisfy defense concerns, and protect any applicable privileges.  The non-disclosure agreement approach had worked in other contexts, he adds.

Closing questions from Connell, beginning with one about defense counsel’s prior request to interview MacDonald without prosecutors present. The witness says he declined the invitation, because at the time he was soon to relinquish the post of Convening Authority and because he then believed---mistakenly, as we now know---that defense lawyers sought to depose (not interview) him. It’s a non-issue in any event, MacDonald seems to say: he is open to talking now, in the solemnity of sworn testimony before a judge.  A final inquiry from Connell, who is still confused as to why MacDonald didn’t want to sit down and talk earlier on: your legal advisor previously testified, under oath, that the prosecution is the Convening Authority’s “client.”  What to make of that?  The witness expresses disagreement with such testimony, and then Connell wraps up.

We’re in recess from what more and more seems to be a MacDonald-centric day.