6/21 Motions Session #3: Welsh & Ruiz LLP

Anything to take up before we get the post-lunch proceedings rolling?  Nope.

CAPT Welsh is recalled.  CDR Walter Ruiz, representing Mustafa Al-Hawsawi, will ask Welsh some questions---about what, there will be little suspense.  After some background, talk turns to the 2011 baseline review.  That is, the searches of detainees’ cells and legal bins.

Linguists associated with GTMO’s intelligence mission, the witness tells Ruiz, provided support during the review, assisting guards who were not Arabic speakers.  Not so with another person, Lt. Col. Ramon Torres, who was a deputy SJA. The latter would interact closely, with high-value detainees (“HVDs”) and their lawyers---though Torres, it turns out, was not present for searches of detainees’ cells. Some time afterwards he was replaced with CDR Jennifer Strazza, a Navy reservist employed in civilian life by the National Security Agency as an attorney.  She had a TS clearance, Welsh explains, and thus could be read on to HVD programs.  But isn’t it true, Ruiz asks, that Torres expressed ethical concerns arising from the reading of detainees’ attorney-client privileged items? No, Welsh says, and seems to doubt as much; he had an open-door policy about these matters, both for his staff and defense counsel.  The witness also doesn’t recall defense attorneys ever relaying Torres’s supposed anxieties, though the lawyers might have, Welsh guesses.  As for the “why,” given Torres’s close daily interactions with detainees, Welsh had decided to exclude him from the review so as not to affect his work.

Now it's privilege review team time---really just “privilege” team, Welsh corrects Ruiz.  Yes, the district court habeas order was the JTF’s template here.  Notice, though, that the habeas order provided for review of classification decisions, say Ruiz.  Welsh, anticipating, notes that a district court ordinarily would have a security officer for this purpose.  But Admiral Woods obviously would not, and at the time there was no commission judge to appeal to, in the JTF privilege team setting.  Obviously there were going to be differences between habeas and this regime, Welsh says.  (He acknowledges a prior request from defense counsel for independent classification review.)  Couldn’t a magistrate judge have supervised appeals on classification decisions, asks Ruiz.  That was a proposal, Welsh answers.  Magistrate?  A magistrate working for whom?  Judge Pohl asks, and neither counsel nor witness knows.

The witness doesn’t know of any CIA role in the Woods orders’ generation, and though he had a role in it, SOUTHCOM took the lead.  When asked, Welsh says Michael Breslin, the Convening Authority’s legal advisor, might have sent draft order language to Welsh in the first instance.  Though pressed a bit, the witness says he doesn’t recall a prior meeting with Ruiz, wherein the group discussed Breslin’s role.  But he does recall Admiral Woods’s desiring to execute his then-draft orders quickly, given his family plans for the Christmas holidays.

Ruiz inquires about his client.  At the time of the review, the witness expected that Al-Hawsawi and the other accused would again face capital-referred charges.  But the baseline review, Welsh says, was not a consequence of Admiral MacDonald’s decisions as Convening Authority; the Woods orders instead came from, naturally enough, Admiral Woods, who had responsibility for the camp and for ensuring national security.  MacDonald apparently had asked Woods to keep the habeas and commissions teams physically separated at GTMO.

Then we hear more privilege team stuff, starting with its members' non-disclosure agreements.  These were signed on 5 January, 2012, after Admiral Woods had executed the underlying orders on 27 December.  But, Ruiz, notes, the privilege team was technically in place prior to the execution of the confidentiality agreements, right?  True, Welsh says, but no counsel had availed themselves of the review during the interim, in light of the Christmas holidays.  The seeming issue was thus moot.  Ruiz also notes that the agreements’ signing, and the waiver of certain of the orders’ provisions, had followed his filing of a federal lawsuit against Admiral Woods on 4 January.  But that was quickly mooted, too, as the privilege team was “turned off,” as Ruiz puts it, by the DOD’s general counsel’s office some time thereafter.  Asked for details, Welsh refers Ruiz to that office.  The lawyer sits.