6/20 Motions Session #2: Two Lawyers and One Admiral

Life is restored to our CCTV screen here at Burba Cottage---thus signaling a return to open proceedings.  The accused are back in the courtroom.  What about our recent Rule 505(h)?  There was no cut in the feed at Guantanamo, the Chief Prosecutor says; there had been some confusion when the court had directed a cut in the audio and video for Admiral Woods’s VTC.  At the same time, prosecutor Johanna Baltes had sought to object to Ruiz’s remarks, but hadn’t turned on her court microphone.  Given the foregoing, press folks in the GTMO galley thus incorrectly perceived an outage in the feed.  Bin Attash lawyer Cheryl Bormann also notes a drop in the translation relayed to her client, during Baltes’s objection and the parties’ subsequent colloquy.  CDR Ruiz, for his part, wishes to preserve his right to litigate the earlier incident---to the extent that becomes necessary. So much for classified stuff; back to Admiral Woods.

His authority included intelligence gathering, he acknowledges under questioning from Ruiz---though intelligence agencies didn’t report to him directly.  (Such activities were carried out by various agencies and, in at least some respect, pursuant to a government contract.)  And, the witness continues, intelligence matters were subject to the privilege review team model, as had been established in Guantanamo habeas litigation.

Some more queries about Woods’ order on detainee-counsel access.  This called for the detainee and counsel to speak in the same language during visits, Ruiz notes.  Why did you include such a provision? Woods doesn’t remember the context and intent, so he can’t really say.  Fine, Ruiz says, and then asks Woods to describe the mechanics of mail-handling procedures.  Intelligence personnel screened non-legal mail, right?  Yes, answers Woods.  But what about legal mail?  Well, the idea was for the Staff Judge Advocate to screen the latter, at least until a privilege team was in place; but intelligence folks didn’t screen attorney-client mail.  Mention of the topic prompts an inquiry about the baseline review, and the notorious searches of detainees’ legal bins.  At the time of the review, the idea was to re-start the Al-Nashiri and 9/11 cases.  When asked, Woods said he knew the 9/11 case would be referred. The witness agrees that it was therefore important to have his orders in place before January 2012.

Speaking of Al-Nashiri, Woods’s revision memorandum for screening written communications was aligned with Judge Pohl’s bench ruling in that case.  But his policy applied facility-wide, he explains, not just to that commission case.  As for what precisely was revised, Woods’s tweak dealt with the definitions of “privileged” and “non-privileged” communications in his original policy.  Did anyone tell the Admiral to sign these orders quickly?  The witness wasn’t so instructed, but signed his orders in light of the commission’s apparently fast-moving timetable.  Woods got a sense of the commissions’ looming resumption, from talking with others with whom he worked.

Binalshibh lawyer Jim Harrington follows Ruiz, and focuses on the day’s central issues---like orders governing communications.  Woods wouldn’t have signed these if he hadn’t understood them, he says. Harrington is interested in the folks with whom Woods consulted about his draft orders.  Woods tells the lawyer that he spoke to his legal advisor, CAPT Welsh, and Welsh’s SOUTHCOM counterpart, Col. Roger Drew.  And Woods had hoped, at the time, to get a privilege team in place as soon as possible---though that hadn’t happened when he left command at GTMO.  The witness also reiterates that he didn’t know details about privilege team mechanics. Harrington pushes about this team-that-never-was: could the review people go to a military judge, and seek guidance, without notice to others?  Woods doesn’t know; hypothetically (and seemingly addressing another issue), he says he could arbitrate---decide---whether an attorney could take particular information to a meeting and discuss it with a client. But Woods assures Harrington that he wouldn’t disclose those discussions with others, he says. Harrington: but how could we have known that, at the time?  Woods: you could have asked the privilege review team, or, for that matter, me, about the protection of confidences.  And you had an opportunity to review my orders in draft and object, too, the witness tut-tuts.

Woods never signed any non-disclosure agreement, nor did he seek such an agreement from his legal advisor.  Harrington asks whether Woods accounted for the logistical burdens on counsel, in devising review rules; Woods didn’t specifically, he admits.  The lawyer isn’t clear on how he could persuade Woods that a particular item was necessary to his representation, and thus not subject to prohibition under Woods’ policies.  Specifically, Harrington has in mind materials about jihadism and the operation of Al-Qaeda.  Woods agrees in principle that such items might be necessary to Harrington’s work. Monitoring is Harrington’s final subject.  The witness was not aware of listening devices at Echo II. Moreover, he explains, he only learned of audio surveillance equipment from media reports postdating his departure.  During his posting at GTMO, the Admiral knew of camera monitors only---having asked JTF staff about this specifically.  The JTF commander at the time was Col. Donnie Thomas, Woods says.

Direct examination is at an end.  Our lunch break begins.