Order in Al-Nashiri on Past, Future Monitoring of GTMO Attorney-Client Meetings
Monday's ruling in United States v.
Published by The Lawfare Institute
in Cooperation With
Monday's ruling in United States v. Al-Nashiri, finds, first, that no monitoring of attorney-client communications has taken place at JTF-GTMO for at least the past two years:
As for the future, the court declines to prohibit monitoring that remains, in its view, hypothetical:
Captain Welsh and Colonel Bogdan [until recently JTF-GTMO's Staff Judge Advocate, and currently the Comannder of its Joint Detention Group, respectively] testified convincingly that attorney-client communications have never been monitored within the detention facility, to the best of either of their knowledge. While neither officer could possibly testify to what may have happened for the prior ten years of detention at Guantanamo Bay, their testimony established beyond the required evidentiary threshold that monitoring has not occurred while either of them has been assigned to JTF Guantanamo. Unofficial Transcript pp. 2327, 2365-2385, 2392-93. Captain Welsh has been assigned to JTF Guantanamo for about twenty-four months, and Colonel Bogdan has commanded the JDG for about twelve months. Both officers collectively would be in the best position to know whether monitoring of attorney-client communications has occurred over the past twenty-four months in the detention facility, and both testified under oath to an absence of monitoring. In the absence of evidence impeaching their testimony effectively or extrinsic evidence relevant to establish the existence of monitoring prior to their tenures at JTF Guantanamo, this Commission finds that no monitoring has occurred for at least the prior two years from the date of the hearing, well beyond the 15 September 2011 date of the referral of charges in this case.
i. In the absence of evidence of past monitoring, issuing an order prohibiting future monitoring would constitute judicial overreach and issuance of an advisory opinion. The JTF Commander and his subordinates have a preexisting legal duty not to monitor attorney-client communications, and issuing an order requiring them to execute their duties would be superfluous. ii. During oral argument, the JDG Commander Colonel Bogdan agreed to permit limited inspections of the attorney-client meeting rooms to reassure the attorneys and the accused that no monitoring capability has been established or reestablished in the rooms. Unofficial Transcript pp. 2393-94. (a) This Commission declines to issue an order memorializing that agreement because there is no legal right at issue to be protected by the Commission; rather, the agreement to permit inspection is an act of good faith by the commander to reassure counsel of his above-board intentions. The commander could have good reason in the future to discontinue the inspections, and a judicial order could then interfere with his exercise of command discretion to fulfill his responsibility to provide for the safety and security of his guard force and the detainees themselves. This Commission will issue orders compelling certain actions or restraining the commander’s authority only when required to ensure the accused receives a fair trial, or to protect some other cognizable legal right. In the absence of a showing of prejudice to a right, this Commission will not issue prophylactic orders.(b) The Commission invites the Defense to renew its motion for appropriate relief upon inspection if a new or renewed monitoring capability is discovered in rooms designated for attorney-client meetings.
Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.
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