6/20 Motions Session #3: The Last of Admiral Woods’s Testimony

Prosecutor Edward Ryan will cross-examine Admiral David Woods, once JTF-GTMO’s commanding officer (whose testimony is relevant, among other things, to the defense’s efforts to dismiss the case on defective referral and unlawful influence grounds).  The lawyer’s first subject?  2011’s “baseline review.”

This occurred one month after Woods assumed command, when the commissions process was soon to resume.  Did Admiral MacDonald share the details of his work---his intentions to refer or not refer cases---with Woods?  MacDonald made only general indications that he was working on such issues, Woods says. At the same time, Woods goes on, he had concerns about items that had been introduced into the camp.  This made for a tight time frame, in which Woods had to account, among other things, for force protection and other safety concerns.  As for the review’s progress, Woods was not directly involved in that. Instead, he received updates from people like CAPT Welsh.  Again the witness underscores his larger purpose, to permit guards to do their due diligence in searching cells, while allowing guards to easily identify---by markings---privileged items.  The absence of a mark would bring about a further guard inquiry.  Woods’s intent was to standardize the marking regime, and to give the defense lawyers an opportunity to provide input.

The habeas team was separate from Woods’s group.  He had no control over, or even interaction with them really.  Yet despite that separateness, yes, Woods meant to model his privilege review mechanism on that in play in the habeas cases.  Of course, no privilege review can take place under commissions auspices, until charges are referred?  That was my understanding, the Admiral tells Ryan.  And it therefore fell to Woods to set a policy, pending referral of the 9/11 and other cases by the Convening Authority.  And, he says, he didn’t receive any objections to his proposals from OCDC---though he did receive comments from individual defense counsel.   Woods acknowledges OCDC’s subsequent instruction to defense counsel, not to send communications under Woods’s order.  After hearing these answers, the prosecutor briefly trots through some of GTMO’s more notorious detainees, who were present on the island for Woods’s tenure; and asks about security incidents involving detainees.  The prosecutor then concludes the day’s quickest examination.

Nevin leads off the defense’s re-direct.  Isn’t it true that you sent draft language of your orders on December 20 of 2011?  Yes, Woods says.  And he accepted comments for two days thereafter.  But OCDC sent you a two-page response on December 22, didn’t it?  Yes, Woods says, but notes that there was no “holiday” break in Guantanamo.  Nevin: so you gave those most affected by the order only two days to comment on this, even after the months of work that had gone into them, and in the midst of a vacation season?  Woods answers by citing the commissions quick-paced timetable; he needed to act swiftly.  But 9/11 defense counsel sought more time, Nevin intones, and Woods acknowledges their request.  The defense, moreover, had told Woods by letter that the draft order put them in an untenable position, and that compliance with it would be unethical.  This, too, Woods recalls generally.  But the witness says nevertheless that, according to his legal advisor, CAPT Welsh, the order’s provisions would, in fact, prove workable for defense lawyers.  A stunned Nevin: so CAPT Welsh thought that this choice---accept unilateral contraband determinations, subject to JTF discretion, or divulge attorney-client confidences---was somehow acceptable?  Woods was trying to strike a balance, he says; he didn’t want to put Nevin and crew in a Hobson’s choice.  The defense lawyer reminds Woods of what else Nevin told him, that Woods’s order destroyed his ability to communicate with his client.  A bit more about the timing of the case’s referral, and Nevin too is finished.

The baton passes to CDR Walter Ruiz. You were extremely eager to get these orders signed, no later than December 23, 2011, right?  I don’t know about “extremely,” Woods shrugs.  The witness says instead that he knew, at the time, that he had to get his orders out.  This contradicts, in Ruiz’s view, correspondence with the DoD General Counsel’s office, wherein a lawyer there told Col. Caldwell that Woods was “extremely eager” to get the privilege team process moving.  But the Admiral has no memory of that, and the characterization belongs to Hecker, not Woods, in any event.  Ruiz asks about 2009 memoranda exchanged between the OCDC and the Convening Authority---seeking, as he explains to a skeptical military judge, to establish that the review process that materialized was, ultimately, far worse than what OCDC proposed.  (OCDC had wanted a walled-off team, but certainly did not get that in the end from JTF-GTMO.)  Judge Pohl sees no “there” here, but nevertheless allows the questioning.  Woods says he never envisioned a team that would be subject to the JTF-GTMO chain of command; on the contrary, he wanted independence.  No, that doesn’t jibe with your as-signed order’s “final arbiter” provision, Ruiz says. Under your own order, Admiral, you decided which communications were okay and which were not.  That sure sounds like control and command to Ruiz.  The witness protests that somebody had to make the final decisions on the issue, and again notes the similarity of his regime to that used in habeas litigation.  Ruiz and the witness talk a bit more, and the lawyer sits.

Recall the purpose of the baseline review, says J. Connell III, a lawyer for Ammar al-Baluchi. The point was to standardize markings, and thus minimize the need for future searches of legal bins?  Woods: indeed, the idea was to stop content searches of the bins.  Thus, he adds, JTF would perform a review, and use a freshly re-tooled markings system for subsequent searches.  But the review itself, he agrees with the defense lawyer, was supposed to be a one-time event.  A bit more detail: Woods’s 22 November memo was meant to cover screening procedures for documents coming into the camp---not necessarily attorney-client meetings, Woods tells Connell.  Still more detail follows, first on the drafting of Woods’ orders for the privilege team (these were sent out by the legal advisor, CAPT Welsh, says the witness, though it is unclear whether the Admiral knows if, in fact, Welsh sent the draft document to OCDC); and then on changes Woods made to his written communications order, in light of defense objections (Woods says he made three alterations, but doesn’t name these specifically); and, finally, on the witness’s relationship to the privilege team (the Admiral adds that he didn’t intend to put the privilege team under his command---though this meant he couldn’t discipline them for wrongful disclosures, he acknowledges).

No other counsel, defense or prosecution, wish to question the witness---so he is excused.  We’re in a brief recess.