6/20 Motions Session #1: First Woods, Then Rule 505(h)

We would hear the gavel bang, but there doesn’t appear to be a gavel inside the Expeditionary Legal Complex courtroom.  At any rate, the military judge, Army Col. James Pohl, ascends the bench and calls our session once more to order.  The five accused are here today.  Then there is Rear Admiral David Woods, his visage grainy and video-transmitted first from his location in the United States to Guantanamo, and then from Guantanamo to Fort Meade, by CCTV.  This morning the former JTF-GTMO commander’s testimony continues, with questions put to him by Mustafa Al-Hawsawi’s lawyer, CDR Walter Ruiz.

Counsel wants to talk about the witness’s resume.  Woods isn’t a lawyer, and has no specialty in detention facility management. Woods didn’t have detention or prison management experience before taking charge at GTMO, he tells Ruiz.  More background: he was serving in the Navy when 9/11 happened. Four of his classmates were killed in the attacks.  And Woods told the Miami Herald’s Carol Rosenberg the war on terror was the focus of his operational career.

When he assumed command in August of 2011, the witness’s chief legal advisor---CAPT Welsh--had been at GTMO for four months. Woods then began regular discussions with other officials---the Convening Authority, Admiral Bruce MacDonald, and the the Undersecretary of Defense for Detainee Affairs, Wiliam Lietzau.  The Admiral was the junior-ranking member of this group.  Still, he says he drove the agenda, with respect to supporting military commissions, though, the witness concedes, the higher-ups had more experience in detention and military commissions than he did.  Ruiz: did Admiral MacDonald ever mention a DoD general counsel directive, to send his protective order down to you for implementation?  No, Woods says. He also wasn’t aware of past efforts by MacDonald to give effect to MacDonald’s prior orders.   Woods likewise didn’t know of the CIA’s role in regulating attorney-client meetings.  Still, Woods denies any coercion from any other involved groups, so far as implementing his own orders goes---and Ruiz is wrong to suggest as much, he says.  Woods had one conversation with Jeh Johnson, the general counsel, after Woods signed his orders in 2011.

A bit more follows about the structure of Woods’ GTMO command, which covered intelligence officials at the facility.  A weird little exchange then takes place: Ruiz asks whether the CIA was on the island during Woods’ tenure.  Quickly, the prosecution objects that the inquiry isn’t relevant.  Before ruling, an uncomfortable but cautious court asks whether this is the “real” basis for the protest.  We don’t hear the government’s answer, but the military judge in any event sustains the objection, while also allowing Ruiz to come back to the matter later.  Wait, come back to the matter?  Ruiz doesn’t get it.  I can’t mention the CIA?  The question prompts a colloquy as among prosecution, defense and court; and then some speculation as to whether the audio feed has been cut.  (It certainly hasn’t thus far, as this post can attest.)

Prosecutor Johanna Baltes hints at surprise, when asked by the court---we didn’t know from filed notices that CDR Ruiz intended to elicit classified information in his examination.   Ruiz, for his part, understands Baltes’s issue but thinks its resolution lies within the discretion of the court’s security officer.  Again the defense wonders, frustration audible in his voice: am I supposed to say “Agency Who Shall Remain Nameless?”  He’s also still puzzled by the relevance grounds---which, the court seems to concede, wasn’t really the true grounds.

The audio feed and classified information management issues blend together---enough to prompt a brief pause, so Ruiz can confer with his colleagues.  Once that’s done, Ruiz rises and proclaims: I won’t be threatened by prosecutors, and want to emphasize that on record.  But Ruiz nevertheless agrees that a Rule 505(h) session is the way forward----while insisting that the court separately inquire into the cutting of the audio feed (which might or might not have occurred down at Guantanamo).

That takes us straight to Rule 505(h) session---which your correspondent won’t see or hear, naturally. And no, the court says, this will not amount to a court closure under Rule 806.  Judge Pohl: All we’re trying to do, in just a moment, is to establish, pursuant to Rule 505(h), what can and cannot be discussed in open session.  Defense counsel renew their objection to the accuseds’ exclusion.  The court rejects that, and pauses the proceedings.

For how long, we don’t yet know.  Stay tuned.