June 13 Session #4: A Trip to Echo II, Part Two; Spiral Bound v. Trapper Keeper

The second of our two monitoring witnesses is Army Col. John Bogdan.  He’s the joint detention group commander at GTMO.  And, like Welsh’s testimony, his remarks will inform the resolution of AE149, the defense’s motion to determine the extent of past monitoring at Echo II, GTMO’s facility for (among other things) detainee-lawyer meetings; and, later, AE27L, the defense’s motion regarding pens and spiral notebooks.  As before, Kammen touches on the witness’s background a bit, including his experiences as a military police officer and detention camp commander.  He’s learned about attorney-client privileges and related matters. 

Monitoring at Echo II

In June 2012, Bogdan assumed his duties at GTMO.  This involved a bit of transition, though Bogan relied a lot on staff to keep things running smoothly.  Members of Welsh’s SJA staff had briefed Bogdan then, as did staffers for Bogdan’s predecessor, Col. Thomas.  The high value detainee meeting areas at Echo II were (and are still) under Bogdan’s command.   He toured them, including the meeting rooms themselves.  His tour wasn't exhaustive, however; he didn’t, for example, look at the Echo II control room with the camera feeds.  Bogdan's examination of the cells was careful, though he didn’t notice the mic-enhanced smoke detectors.  To be clear, Kammen asks, is there a no-smoking policy at Echo II?  You’re not allowed to smoke at any military facility, answers Bogdan.  And he agrees that detainees can’t bring fire-starting materials, such as matches or lighters.  (How could you not notice a smoke detector in a facility where smoking is not permitted?  Kammen asks, when prosecutors object and the court inquires about the lawyer’s purpose.)

He became aware of audio monitoring in January, Bogdan says, and wasn't briefed about the issue prior to that time.  The lawyer notes Bogdan’s acknowledged obligation to arrange for repairs onsite at Echo II.  Is Bogdan aware that audio equipment was repaired earlier this year?  Yes, audio wires were repaired in October---but this was done without Bogdan’s knowledge at the time, he explains.  It wasn’t a secret, he says, but was merely a task carried out by the camp commander.  The latter had asked the techs to repair certain wires.  But the camp guy didn’t advise you of this development, Col. Bogdan?  No.  Kammen finds that strange; the witness does not and says as much.  What about video capabilities?  Bogdan eventually looked into the control room and saw it.  But he also says he didn’t see equipment that---we know now---allows for audio monitoring.  It turns out another of Bogdan’s subordinates told him that Echo II had no audio capability, at which time Bogdan told the fellow that monitoring of privileged conversations was prohibited.  The witness was, of course, surprised to learn, later, that the subordinate was incorrect.  When asked, Bogdan says he also didn’t chide CAPT Welsh for not briefing Bogdan about monitoring matters.  But Bogdan didn’t see any failure; still, he was surprised that it took so long to learn of the issue.

Is there a written policy regarding monitoring?  There is, Bogdan says; it was generated after the January snafu.  And before January, asks Kammen. There was no written policy, but there was a verbal policy---Bogdan disallowed snooping on privileged communications, and had instructed the facility commander.  Kammen is still doubtful: how could your colleagues listen in on attorney-client meetings without listening devices?  You could stand outside the door, Bogdan hypothesizes---but in any case, he was concerned with the policy prohibiting monitoring, not  with the process by which improper monitoring might be achieved. 

Can someone gain access to Echo II without your knowledge?  No.  But did you know about an upgrade to video equipment?  Yes.  Audio equipment?  No.  Wait, Kammen says: they didn’t tell you about the latter?  The repetition draws objection from prosecutor Andrea Lockhart; her protest is overruled.  Kammen winds up: why would unused equipment need to be repaired?  After all, you said there was a policy against monitoring.  Bogdan ascribes this to a building upgrade.  Engineers, he says, had come in to do renovation.  The camp commander took it upon himself to repair anything damaged during that.  The fellow knew of Bogdan’s rule against hearing privileged conversations, according to Bogdan.  Kammen then returns to his theme: a lower ranking man took it upon himself to repair audio equipment that he knew existed, but that nobody was using?  The question hangs as counsel and the court debate its propriety: the prosecution doesn’t want repetition, and the court doesn’t want Kammen testifying in Bogdan’s place.  When asked, Bogdan explains that once he learned of the smoke detector/microphone problem, he directed his subordinate to investigate.  Afterwards, the devices had their power cut, so as to prevent monitoring.  A final note from Kammen: you had a verbal policy against monitoring?  Yes, Bogdan said.  Well, if your troops knew not to monitor, why did you need to disconnect the power system at all?  Because, Bogdan said, he wanted to guard against inadvertent use.  Soldiers aren’t familiar with the audio equipment, he says, and thus he wanted to make sure that it was not operational---when he discovered the audio monitoring in January of 2013.   After that, Bogdan acknowledges, he didn’t hunt for records of past monitoring efforts, and doesn’t know if such records exist.

Cross-examining Bogdan is the responsibility of CDR Andrea Lockhart. She cuts to the chase. Do you have any knowledge, or have you seen any evidence, of audio monitoring of attorney-client communications at Echo II?  No.  And did Bogdan meet with defense personnel about monitoring issues, after they arose in January?  Yes he did.  There were no time limits on these discussions, and defense counsel were permitted to tour the facilities at Echo II.  Defense lawyers saw the cells and the control panel, explains the witness.  There was no time limit on this investigation, either. There haven’t been any problems raised about monitoring issues since, Bogdan confirms when asked.  So much for Lockhart’s questions; the court asks a few of its own, about remedial measures.  Bogdan notes the sequence of events: he initially took no remedial action, in light of Judge Pohl’s “pause” order.  Thereafter, he ordered microphones removed from all Echo II cells. Would Bogdan allow for periodic inspections, to ensure that no hidden microphones are there?  The witness isn’t so sure about “periodic,” but a single, follow-up investigation---sure.  He’s fine with that, provided he has notice.  What about during a defense team meeting at Echo II?  Also fine by Bogdan.

Spiral Notebooks

The court prompts Kammen to move to the so-called “notebooks” problem. He confirms what we already know:  there are rules and regulations regarding what attorneys may take into client meetings, including memoranda from the JTF commander, Bogdan’s superior.  Bogdan also obviously follows orders from the court---one of which Kammen shows to the witness.  Such orders forbid lawyers from giving certain items---pens and eyeglasses and the like---to detainees.  But lawyers can bring these things in, in order to do their work?  Yes, Bogdan responds; the lawyers have to be able to do their jobs.

The lawyer is keen to demonstrate how frivolous the notebook ban truly is, and aims to see just how long it would take for a shackled, monitored detainee to convert a spiral notebook into a garrote.  The witness pushes back on that characterization---he’s more worried that the lawyers might pass on the binding to the detainee, and thus speed the conversion from school supply to deadly weapon.  Aren’t the lawyers cleared, and officers of the court?  Bogdan acknowledges that they are, but is nevertheless worried about contraband, of which there’s a lot these days in the camp.  Thus the ban, which applies to metal as well as plastic bindings.  (An example of the latter has been labeled as an exhibit, and passed to the witness.) The lawyer pushes Bogdan’s principles: wouldn't his soldiers intervene if they saw a visitor misbehaving?  And isn’t his policy bound by rationality?  Yes, he answers.

Prosecutor Capt. Chris Ruge rises for his share of our notebook-themed chat.  What makes something contraband, he asks.  The ability to convert an item into a dangerous weapon, he says.  How do you balance that with the requirement to allow lawyers to do their work?  The answer, in so many words, is that Bogdan tries to be reasonable, allowing papers, pens, and so on.  We’ve had plenty of incidents when detainees have fashioned weapon from contraband items.  And here, he’s opted to manage that risk, as applied to spiral notebooks, by prohibiting the item that poses the risk.  A few more queries, and Ruge returns to his seat.

Kammen returns with a few more queries of his own.  After meetings, don’t guards search detainees and look for contraband?  They do, Bogdan affirms, explaining that, among other things, they are wanded.  And there are how many cameras in the room?  Two.  To this point, Kammen adds another: there’s no policy disallowing the use of notebooks.  And so he marches through the rules and regulations, which contain no actual prohibitions of the kind Bogdan imposed.  Still hammering on the rule’s absurdity, Kammen asks whether Bogdan’s charges could lose track of three or four notebooks.  How is that risk any different for items that are permitted, like pens and eyeglasses?  Judge Pohl has tired of this a bit.  The issue, as he sees it, is simply who decides.  He doesn’t run a detention facility; he only deals with matters affecting the commission.  Mr. Kammen, what prejudice do you suffer, as a consequence of the no-notebook rule?  The lawyer, in his answer, refers to other prisons, which allow notebooks.  He also cites inconvenience: he has to switch notebook styles midstream, every time Bogdan alters the state of play.  So the only way you can do you job is with a spiral notebook?  No, Kammen says, but that’s the best way, the one least likely to result in lost notes.  A few more remarks, and Kammen finishes.