June 13 Session #3: A Trip to Echo II, Part One

The commission is once more called to order.  Witness testimony on AE149C, and monitoring, beckons---in particular, testimony by Navy CAPT Thomas Welsh.  He’s the Staff Judge Advocate for JTF-GTMO, and sworn before Kammen begins his examination.  The defense lawyer asks about his past experiences before turning to Welsh’s work at GTMO.

Upon arriving, Welsh toured camp facilities.  That might have included an initial look at Echo II, and its much-discussed detainee meeting areas, though the witness cannot recall.  He went there for only specific purposes, but can’t say whether he went to every room in the building.  There’s irritation in the air, as Kammen probes whether Welsh really thought it important to visit the room where high value detainees met with lawyers---Kammen gathers that the answer must be “no.”  Welsh is the witness, though, and rejoins that Kammen can characterize his testimony however he likes.  But the answer is the same: he simply cannot recall.  In any case, he says firmly, we have not monitored any communications.  Ah, but did you see a smoke detector when you went by Echo II?  No, though the witness says he went to Echo II this January, when counsel’s monitoring problem arose.  Again, no conversations were monitored, among attorneys and detainees, or among ICRC members.  And when Welsh first saw the monitoring equipment, he was surprised; he hadn’t heard of such things before.  Thus he raised the issue with his client and JTF Commander, Col. Thomas.  The latter confirmed that the Echo II rooms had monitoring equipment---but affirmed to Welsh that, no, attorney-client meetings were not monitored. (Col. Thomas didn’t tell Welsh about what transpired, monitoring-wise, prior to Welsh’s arrival.)

Kammen shows Welsh a document, setting forth policy for meetings at Echo II.  Welsh acknowledges that under this policy, lawyers had to give prior notice of planned Echo II sessions with clients, and the language in which sessions would be conducted.  (He’s keen to add that the latter requirement, lifted from federal habeas orders, is not enforced as a practical matter---though it hasn’t been officially rescinded either.)   Does Welsh recall a journalist, who asked Admiral Woods---then GTMO’s chief---whether monitoring capability existed at GTMO?  Woods apparently denied the existence of any such technology.  Well, that was described in an email to Welsh in 2012, he says; but the witness can’t recall reviewing it specifically at that time.  Of course, he says, he certainly reviewed it later---during recent proceedings in the 9/11 case---and realized that Admiral Woods had made an inaccurate claim to the press about Echo II.

By the time COL Bogdan took over, in 2012, Welsh knew of audio monitoring capacity at Echo II.  But the witness did not go into the meeting rooms to see whether the equipment was, in fact, being used---no surprise, as Welsh already had been reassured by a professional law enforcement officer in the U.S. armed forces that---again---no monitoring happened.  And Welsh didn’t brief COL Bogdan about the monitoring capability, upon the latter’s arrival and Thomas's departure.  Didn’t you think it was appropriate to make sure that Bogdan knew that monitoring was improper, barred by legal rules, and the like?  No, Welsh says to Kammen, all I had was a thirty-minute in-brief with the new boss.  But Welsh assumed that Thomas had advised Bogdan, his successor, about the monitoring array.

When 9/11 defense counsel expressed anxieties about actual monitoring, Welsh did not perform any separate investigation, he says.  At any time did you determine whether one was using the monitoring equipment?  No, the witness answers Kammen; there was no log or paper trail for that.  When asked whether he would know whether secret monitoring was ongoing, despite past assurances to the contrary, Welsh says he couldn’t possibly know.  He elaborates on the chronology: Welsh received notice of Judge Pohl’s “don’t touch anything” order, regarding monitoring---from a certain blog---shortly after it was entered.  But the witness doesn’t recall receiving calls from defense counsel to that effect.  Some final plumbing from Kammen: did Welsh establish any training for staffers, regarding monitoring?  No, but Welsh points out that JTF-GTMO personnel receive training in attorney-client matters.  He adds that he cannot know what all of his subordinates are up to, all the time.

Prosecutor Lt. Bryan Davis now questions Welsh, about, first, the various purposes for Echo II meeting areas.  Those are used by lawyers as well as ICRC personnel, Welsh answers.  Recall also the meeting, during which you first noticed audio equipment at Echo II.  That wasn’t an attorney-client meeting, was it? No, it wasn’t, is the answer.  Davis shows Welsh the policy for detainee-client meetings, and the witness affirms his earlier testimony: the language-notice rule hasn’t been enforced, as evidenced by meeting forms completed by the Al-Nashiri defense team.  And on Bogdan and Thomas, did the two men's backgrounds affect how much you advised them, legally?  Both were professionals with law enforcement backgrounds, and thus Welsh didn’t think it necessary to go beyond their assurances about the lack of monitoring.  When asked about investigative matters, the witness explains how he and COL Bogdan took defense counsel to the Echo II control room, which housed video monitors and audio-monitoring equipment; defense counsel also spoke with Bogdan on the issue.  The latter answered all of the defense’s questions, Welsh says.  The guards even denied to defense counsel that any monitoring occurred, Welsh continues, because they feared the “could end up in court.”  One more from the lawyer: in your time at GTMO, have you seen any evidence of monitoring at Echo II?  Nope, and “there’s no dragons, either,” the witness says.

We take a short recess, after which Richard Kammen resumes with Welsh.   

You said there are no “dragons,” earlier, he says.  But there is still an Echo II audio monitoring capability, right?  No, Welsh says.  But there was one until the defense acted?  Yes, Welsh says, the monitors were removed in February.  So, Kammen pushes, the equipment is there, and could have been used up to that point.  The witness describes the monitors he witnessed: there are multiple video monitors, five or six, Welsh thinks.  He understands there are two cameras in each meeting room, which relay images to the monitors.  The court cuts this off, finding technical matters to be better addressed to Col. Bogdan, from whom we’ll hear next.  Thus the defense lawyer asks about FBI matters related to monitoring: Welsh doesn’t know how long FBI personnel had listened to proffer sessions and other non-confidential meetings at Echo II.  Himself, the witness only knows of one proffer session, which he saw in 2012 and testified about earlier.  And again, his focus was on the present, not the past: he focused on precluding monitoring, not on investigating past monitoring problems.

Kammen asks about the lawyer’s history with his clients: Bogdan and, earlier, Thomas.  He hadn’t any prior experience with either man, before Welsh’s service at GTMO.  Here’s Kammen: having no background with them, you made no effort to uncover whether Thomas was versed in what was acceptable or not, as regards monitoring?  No.  (The witness visibly wants to say more, but the court stops him.)  Ditto Bogdan?  Also no.  A few more questions about defense counsel’s investigation, and the dreaded non-smoke detectors.  When he saw them, Welsh didn’t know they contained microphones; he first learned of the audio feature when it was pointed out to him, at the end of January in 2013.  A question or three more, and Kammen is done.  Welsh is, too; he’s excused.