6/21 Motions Session #5: Are We There Yet?

Suspense: will we proceed with the prosecution’s examination of CAPT Welsh?  We wait to find out.  Prosecutor Edward Ryan has a few housekeeping matters, one having to do with the long pending AE18---the government’s motion for a privileged written communications order.  The rules allow for a decision on this without oral argument; and, as it happens, the court has heard witness testimony (including that of CAPT Welsh), and read ample briefing on the case, already.  Will the court rule without more back and forth on AE18, asks Ryan.  Defense counsel objects, in the person of David Nevin---and his position will prevail, seemingly.

In any event, Prosecutor Clay Trivett will cross-examine CAPT Welsh, first by noting a written response of the American Bar Association to prior correspondence from JTF, regarding the camp’s policies for written communications.  Far from further bashing it, the ABA letter expressed appreciation for JTF’s work, and recognized challenges in running GTMO.  Challenges---you mean a tough balance of security and defense prerogatives?  Yes, it does, Welsh says.  As for that balance: as of 3 May 2012, Ammar Al-Baluchi has not met with defense counsel, Welsh says, desiring to correct an earlier, and incorrect claim in his affidavit.  Never met with his lawyers, asks the court, despite court appearances? Right, clarifies the witness.  Welsh then describes other meetings between other 9/11 accused and their lawyers.

Turning to the evolution of JTF communications policies, Trivett cautions that he doesn’t desire to elicit privileged information from the witness.  Welsh tells the prosecutor about mechanics, including the use of a courier---the latter might see items from all five defense teams, Welsh agrees with Trivett---and the effect of 2008 JTF orders on lawyer-client conversations. Under those, there’s no “contraband” problem, so far as concerns, say, a chat among lawyer and client about “historical jihadist activities”---provided all the information flows from accused to counsel.  You, CAPT Welsh, were asked a great deal about the attorney-client privilege.  That applies no matter what the case, right?  Of course.  So there’s no heightened privilege because this is a capital case?  Right again, Welsh tells Trivett.  The latter later inquires, among other things, about non-legal mail processes, the speed of which might depend on volume, according to Welsh.  But the look for contraband is the same for non-legal mail as it is for legal, he affirms.

What of the blocked items Bormann described?  This all happened during the efficacy of an interim order by Admiral Woods, the witness says, and lasted only 35 days.  During that, Welsh and company were hard at work on a commission privilege team procedure, desiring as they did to “get out” of the communications business. Yes, the privilege team order lacked a “classification review” mechanism (its habeas counterpart had one), but, Welsh acknowledges when Trivett asks, both the habeas and commission procedures nevertheless allowed team members to disclose national security information in emergency situations.  And yet nobody’s suggested that the habeas order undercut the attorney client privilege.

What is the purpose of the baseline review?  Welsh notes some incidents that gave rise to the it---among others, the seizure of photographs of intelligence personnel, which had been found in Mustafa Al-Hawsawi’s cell.  Those pictures would have constituted “contraband,” and there weren’t any sort of privilege-denoting markings or stamps on them, either.  Separately, a 2010 issue of the Al-Qaeda glossy Inspire was almost delivered to the camp, through the legal mail channel.  That would be contrary to good order, Welsh says, who noted the issue’s article on devising a homemade bomb.  It is certainly not the stuff you want in a detention facility with high-value detainees, despite Al-Hawsawi’s lawyer’s claim that the magazine was integral to the defense.  We can see the point here: the policies pre-review, Welsh agrees when asked, weren’t always enforced rigorously and could be weak.  Stamped stuff could come into the camp, and nevertheless be contraband.  And that was why JTF decided to stand up a privilege team.  Similar reasons underlay the baseline review, which let the camp staff determine what was held in the camps, and establish a system for better tracking them.  Welsh adds that contraband was found in all five accuseds’ cells, but that materials were returned to Al-Hawsawi and Binalshibh.  But Welsh never was asked for, and didn’t divulge, seized materials or information from the review.

Several teams used the privilege team once it was established, Welsh testifies. And in fact, some defense counsel---Col. John Jackson, who represented Al-Hawsawi once---thought the team approach represented an improvement.  Jackson didn’t raise any ethical concerns, Welsh agrees with Trivett.

The prosecutor refers to COL Colwell’s instructions to his colleagues---and his ban on the transmission of written materials through the privilege team channel.  Nevertheless, Welsh sent filed court documents through privilege team review, given that these obviously were not subject to any attorney-client privilege.  Relatedly, Welsh had recommended to defense counsel that COL Colwell revise or clarify his order, so as to permit the sending of filed pleadings; eventually Welsh took that step himself, and spoke to Colwell directly.  The latter then made clear that not-attorney client privilege materials could be sent, consistent with his direction.  Trivett surmises that a book like The Black Banners could therefore be sent, without running afoul of defense policies---but Bormann objects and the court sustains.

A few more queries.  Welsh could seek ethics opinions from superiors, as could COL Colwell?  Right, says the witness, who doesn’t know if Colwell sought ethics guidance from military ethics lawyers.  Trivett concludes.