6/21 Motions Session #4: Much Welsh

The ELC conch passes to the Abaya-clad Cheryl Bormann, lawyer for Walid Bin Attash.  She met our still-testifying witness, CAPT Welsh, in the summer of 2011.  Before teleporting back to then, however, defense counsel marches through some biographical matters for GTMO’s former Staff Judge Advocate, much as Bormann’s colleagues did earlier.

Those out of the way, she asks about the rules for visits when Bormann first met with Bin Attash, also in 2011.  These limited the number of lawyers, and the number of HVDs who could hold meetings at a given date, Welsh affirms.  But there were exceptions granted to these norms in practice.  Bormann then pivots from visits to written communications, starting with correspondence brought in by defense courier.  At the time, Bormann says, SJA personnel would open envelopes, remove paperwork, inspect it and then hand the papers to the detainee.  Right?  Right, though the concern was not merely for physical contraband, Welsh says.  A quick pivot back to meetings, and Bormann's observation that then-existing rules were at times altered, and often varied from the letter of JTF policies creating them.  Welsh takes her point that the setup needs revisiting.

We’ve come quickly to 5 October, when the baseline review commenced.  The plan to inspect legal bins had been in place for some time then?  There had been discussions, Welsh says, but no plan really came together until August of 2011.  Bormann counts discussions as planning; the witness doesn't, and sees a distinction between the terms, at least in military matters.  (Pause: the lawyer elects to move from this subject to another one, the witness’s preparation.  Did he meet with prosecutors before appearing? Yes, with multiple prosecutors on multiple occasions.)  Distinction or no, Welsh tells Bormann of his own role in drafting, for example, a memorandum to Admiral Woods and SOUTHCOM regarding baseline review issues.  Welsh says Admiral MacDonald and his legal advisor were not part of JTF discussions, though the pair were on some emails, along with the DOD general counsel.  The witness, when asked, reiterates earlier testimony that the review started with detainees facing sworn or referred charges.  The intent, Bormann says, was to confirm that materials in the camp contained needed stamps (and thus constituted “legal material”)?  Yup.  Everything marked by counsel, regardless of how large the marking, it didn’t matter---that was going to be reviewed to determine that, in fact, it constituted “legal material?” Yup again.

Dialogue follows, naturally, on the definition of such material: it meant items having a direct relationship to the detainee’s defense.  But is it fair to say that Welsh wasn’t informed as to what the defenses in this case would be?  It is, Welsh answers.  (Then how could you apply the "legal mail" definition at all, Bormann all but asks--but doesn't quite do so.)  Nothing found during the review of Bin Attash’s was kept?  That’s right, says the witness---who didn’t keep a log of what he and his colleagues reviewed and returned, after applying stamps as needed.  Bormann asks how much material the Staff Judge Advocate’s staff evaluated, over the course of the review; Welsh answers in bins and pages, estimating the latter to be in the thousands.  Because of that volume, pages might not have been stamped, he tells Bormann.  What of defense counsel’s objections to the review?  On hearing these, Welsh invited defense lawyers to speak to him.  9/11 and Al-Nashiri counsel did so, evidently, and voiced worries over content-based, privilege-violating searches.  Still, the review continued, the witness acknowledges, despite further objections raised by counsel in letters to Welsh---including that their clients would forgo meetings with them going forward.  Welsh didn’t verify that this had occurred, on a detainee-by-detainee basis; and notwithstanding a written letter implying as much, he doesn’t recall Al-Baluchi telling Welsh that Al-Baluchi had refused to meet with his attorney.  Welsh suspects it was KSM who had told Welsh that he had foregone lawyer meetings in light of the review.  And he reiterates: he cannot remember any inquiry from the Convening Authority, Admiral Bruce MacDonald, about anxieties regarding the baseline review.  Bormann: did Bin Attash ever consent to any search, or did Bormann?  No is Welsh’s answer on both counts.  And the review encompassed a translation from Arabic, of documents composed in that language, for the benefit of searching JTF staffers?  We hear a yes to that one.  Well, then how did that square with CAPT Welsh’s ethical obligations, as imposed by Navy instructions---which hold the attorney-client privilege as sacrosanct?  You’re a Navy JAG, after all, and it is professional misconduct to violate or help a violation of such instructions. Welsh says he acted in coordination with his supervising attorneys at SOUTHCOM.

Bormann asks about concerns raised by Welsh's subordinate, Lt. Col. Torres, regarding the review--presumably those to which Ruiz referred earlier.  The witness tells Bormann what he told Ruiz: he didn’t know of them.  The former deputy SJA’s anxieties were evident, in Bormann’s view, in light of a content-review of Bin Attash’s material---which postdated defense counsel’s objections.  She felt that this breached a promise given by JTF staff not to review for content.  But Welsh perceives no betrayal.  He says that he looked into Bormann’s allegations, and that the facts were to the contrary.  (The witness noted as much in a document that, unfortunately, has been shipped to the United States since his departure from GTMO.)  But CAPT Welsh rejected any suggestion that, because “death is different,” he had to forego even a cursory review of all documents.  He likewise disputes the equation of minimal review with simply “reading,” as Bormann puts it.  Welsh's understanding of what counted as case-related---and thus not subject to content review---was liberal.  That is, the former JTF lawyer took pains to act more protectively than was called for by Judge Pohl’s order in Al-Nashiri.  Speaking of that case, Bormann asks about JTF’s refusal, earlier, to allow her to bring in a copy of Woods’ revision memorandum---the policy governing her discussions with her client.  Correct, Welsh says, for that document was not an attorney-generated communication, and thus subject to inspection and blocking under the Al-Nashiri order which then controlled.  Ditto as to other legally-themed but not lawyer-authored items, pleadings and books like Soufan’s The Black Banners, and so on. But, Bormann protests, Soufan’s book describes all kinds of stuff bearing on Bin Attash directly!  The witness understands, but cites JTF policies.

There are a few more exchanges after this---including another, predictable one, on the Woods’ orders harmful approach to various “contraband.”  (That is, a Hobson’s choice-y approach, to borrow Nevin’s phrase: a commander-centric, defense-compromising definition of such material, on the one hand, sometimes coupled with a privilege-disclosing appeal mechanism, on the other.)  The witness answers much as he did before, while acknowledging defense counsel’s having highlighted the problem.  And Welsh recalls his refusal to allow Bormann to bring in attorney notes (a list of likely discussion topics) to a meeting with her client.  Well, that’s what the Woods orders did, Bormann sums up; they precluded us from really representing our clients.  When Bormann notes that Welsh, in email correspondence with defense counsel about legal mail matters, had proposed to copy prosecutors in a response, the witness explains that he did so only to advise the government of possible litigation issues, and not to assist it in any way.  Thus Bormann lands her intended punch,  noting that Welsh seemingly did not do the same as to her group, when the SJA communicated with prosecutors.  And Welsh had, it turns out, drafted a declaration for use by Col. Bogdan, as a witness in this case.

A bit more along these lines---communications between Welsh and prosecutors, for example---and Bormann brings her examination to a close.