8/22 Motions Session #2: What is Contraband?

Rug swept and table dusted, the parties again take up consideration of AE018, the government’s motion for a privileged written communications order. Edward Ryan, of the prosecution, picks up where he left off yesterday: with the enduringly controversial meaning of “contraband” under the various drafts. Under his side’s proposal, a privilege review team would seek approval from the JTF commander, in order to account for potentially threatening materials---exactly what happens in Guantanamo habeas litigation. And yet, Ryan reminds us, the defense’s version strikes that approach, thus stripping the government of essential functions needed to ensure security here at the detention facility.

An example of material that would clearly not be “contraband,” but wouldn’t be privileged material either, under the government’s order: the 9/11 Commission Report. On the other end of the spectrum, the prosecutor continues, would be a book written by a “questionable” author.  That would count as “contraband,” as the dangers and risk of allowing this material into the camp would outweigh the defense’s interest in furnishing the material to their clients.

Let’s not forget the primary purpose of this facility, Ryan goes on: to ensure national security.  Let us also not cast aside common sense, either: when you are charged with murdering three-thousand people, then you will have to expect that your ability to communicate freely will be restricted. A final word of emphasis from the prosecutor, who says the government’s order is reasonable, and properly balances national security with defense counsel’s needs (which of course, the government understands). Judge Pohl listens intently to these remarks without any queries, and as Ryan returns to sit down, we see David Nevin’s profile appear on the screen.

Khalid Sheikh Mohammed’s attorney turns Ryan’s position on its head.  Other Guantanamo communications orders support us, he insists.  Take the order employed in Periodic Review Boards.  Those don’t---unlike the government’s draft here---deem to be “contraband” such things as materials touching on other detainees’ detention, historical perspectives on jihad, or foreign terrorist organizations.  Think of what that approach will do to our defense, Nevin urges the military judge.  Years later, observers will say, doubting and scoffing: “that’s a court?”  We will end up wasting our time here, he promises ominously, if AE018 is entered without the defense’s amendments: a higher court surely will send the whole case back.

Judge Pohl recall’s the government’s example of the 9/11 Commission Report, and walks through its handling under the government’s proposal. Well, Nevin pounds the podium, when it comes time for trial, and my client takes the stand, the government certainly will waive the report in his face, and say “haven’t you read this document?”  But the government will know what in the Report I instructed my client to read, since it's not privileged material. It’s an absurdity, even a travesty, for the defense attorney.  So too with even some concededly more provocative, even dangerous material that could count as "contraband": Inspire magazine. That publication undoubtedly implicates force protection issues, he acknowledges.  But it also purportedly is the handiwork of an alleged co-conspirator in this case.  Thus he has the same problem here as before: Nevin cannot share Inspire’s contents with KSM, even though, again, the words and deeds of a co-conspirator are certain to be aired at trial.  Lastly take the the bin Laden fatwa, another big-ticket item from the charge sheet.  If the fatwa truly is a central feature of the government’s case, then Nevin has an obligation to present that to his client---though, again, the government’s draft order would preclude him from doing so. His fundamental point: take away the ability to prepare critical defenses, and you take away the defense function while ensuring a fundamental breakdown in attorney-client privilege. After a brief sidebar with his client, Nevin wraps up his argument.

Nevin swaps with Cheryl Bormann, attorney for Walid Bin Attash.  She has some additional comments on bound materials---books, really.  Should you adopt the government’s order, I’ll have to physically disassemble a book---say Soufan’s The Black Banners---and comment on each page, in order to transform the selected parts from “contraband” to privileged material.  That will take me hours, she says.  Then there’s James Harrington, attorney for Ramzi Binal Shibh.  This written communications order is really about your role in the case, he says.  And he doesn’t think he should have to provide his defense strategy to the judge, or to a privilege review team, but that will be the standard if the government’s proposal is adopted. Harrington doesn’t trust folks other than the defense with defense information, or the accused’s thoughts.