June 11 Session #3: Welsh and Bogdan Will Do Just Fine

Aaaaaand we’re back.  AE149 is up next.  It’s a motion to compel, regarding witnesses to certain alleged monitoring---specifically, electronic monitoring of attorney-client meetings at Echo II, where detainees meet with their lawyers.  The court parses.  There are three aspects to the problem, Judge Pohl says: in-court monitoring, monitoring in holding cells, and monitoring in Echo II.  What’s this dispute about, in particular?  Our motion touches only on Echo II, says Kammen---that’s where the issue continues to present itself.  For a time, the government was forthcoming, Kammen says.  At the time of its investigation, we learned of a “smoke detector” in a meeting room----which was in fact an audio device.

Wait, says Lockhart: are we doing the merits or motions to compel?  The latter, says the court.

Back to Kammen, who continues with the history.  In the 9/11 case, the court permitted witnesses to be heard on the audio monitoring issue---but we haven’t done that yet in this case.  Judge Pohl: fine then.  Who do you want to testify?  Kammen says he wants to hear from CAPT Welsh; Col. Bogdan; and an FBI Special Agent.  For Lockhart, Welsh poses no problem; she rises and quickly says as much.  But Bogdan does pose one, in her view, given the seemingly cumultative nature of his testimony.  The court: he runs the facility, right?  Yes Bogdan does, the prosecutor concedes.  On to the FBI man, who is assigned overseas.  That's another reason not to call the witness, as Lockhart sees things.  At any rate, here’s the prosecutor's key point: monitoring hasn’t happened, and won’t in the future.  Then Lockhart expresses displeasure with the negative-proving task foisted upon the government: prove that no monitoring happened, prove that dragons don’t exist, and so on.  No witnesses are needed to do achieve this or any other such impossibility, she insists.  And what about simplicity?  CAPT Welsh can simply reaffirm his testimony in the 9/11 commission case, that no monitoring has occurred at Echo II.

Judge Pohl to Kammen: will any of these witnesses say that in fact, monitoring took place?  Circumstantially, um, no, he says.  However, there are plenty of inconsistencies in the witnesses’ past testimony as to monitoring, Kammen continues.  But for those, we would simply import the prior testimony into this case.  Such disparities make presentation of the witnesses imperative here, certainly as imperative as it was in the 9/11 case (here and here).  The court returns to his leitmotif, apparently for the benefit of all parties: testimony in one case does not affect testimony in another case.  I'm not prejudging anything.

A-ha, says Lockhart: there isn’t any inconsistency as between witnesses testimony on the issue under discussion---namely, whether monitoring has ever happened or will again at Echo II.  In the past, all of the sought witnesses uniformly have said---and will say, if called---either “I don’t know if it happened" or "it didn't happen" and "it won't happen in the future."

A quick resolution: It seems Col. Bogdan and CAPT Welsh will testify, and De La Rocha won't.   Judge Pohl so rules and we move down the docketing order.

[Update: this post has been edited to reflect that CAPT Welsh was agreed upon as a witness, and so will testify this week.'