Published by The Lawfare Institute
in Cooperation With
Ruiz returns to his chat with Massucco, who remains on the stand. The witness recalls a JTF inquiry into the February search, though he wasn’t involved in it personally. When Ruiz asks for additional detail about the February episode, Massucco again recounts Al-Hawsawi’s complaint about missing, still-unreturned materials, a complaint which the witness passed on to the guard force---the Assistant Watch Commander on duty, Massucco believes. That person might or might not, Massucco says, have been the individual who performed the search. But the witness did not see any guard go back to an evidence locker, to confirm that documents belonging to Al-Hawsawi remained missing. Only in mid-March, did Massucco get his hands on the items in question. What about in the interim? The witness recalls being asked by Ruiz about the documents then, and telling Ruiz that the items could not be found. Massucco doesn’t know where the documents were during this period, but does know that, when he eventually came upon them, the documents were contained in a sealed, dated envelope.
Ruiz asks: can searches be directed by intelligence officials, to Massucco’s knowledge? No, not non-DoD intelligence personnel, says the witness. And he is unaware of “intelligence personnel”---Ruiz’s term---who work in the detention facility, too.
What about books? Massucco accepts Ruiz’s suggestion that books were removed from Al-Hawsawi’s legal bin, for inventorying purposes---but doesn’t recall a prior discussion with Ruiz about this, or any actual inventorying. (The inventory process is required, says Massucco, because the non-legal mail channel does not detect all inbound material.) At any rate, the gist here is the same as before: the witness wasn’t present for any search or seizure. And, as before, Massucco can’t say whether books were taken from Al-Hawsawi in particular, though Massucco believes that any cataloged books would be returned. Of course there could be hiccups here: he acknowledges a change in the guard force, which might require training up on the court’s orders, and which might mean irregular application of GTMO rules. New kids, Massucco says, come in every six months, and their orientation to camp procedures can be imperfect. The court chides the witness: shouldn’t training of guards be a priority, so I don’t hear the new-guys-don’t-know-the-rules excuse, over and over again? Massucco rejects the idea that any improper seizures have occurred, since February. But he concedes that, at least once, a guard took an item from a detainee’s cell without calling the issue---the existence of proper stamps---to Massucco’s attention. A bit more, and Ruiz sits down.
Capt. Michael Schwartz, lawyer for Walid Bin Attash, questions Massucco briefly, first about the investigation that followed the February 2013 search; and second about the cataloging of books in detainees’ cells. The witness answers as he did before, albeit this time with respect to Bin Attash: Massucco doesn’t do the searches, and he doesn’t inventory books, either. Nor was he present for an inventorying of Bin Attash’s stuff, though he knows at least one librarian would have been. A contraband book---about the internet and cell phones, emblazoned with the ISN number of a different detainee, Bin Al Shibh, and bearing ink handwriting---was seized from Bin Attash, adds the witness. (Detainees do not---or are not supposed to---have access to ink pens.) Another book, an Arabic text on Sharia law, was cataloged but not seized. When Schwartz asks for further detail, the witness demurs; again, he wasn’t in Bin Attash’s cell when all this book stuff went down. He defers to the librarian, but suspects the librarian sought, at the time, to determine whether the book was personal or legal, or properly stamped. The defense attorney pivots back to the February search, and Massucco confirms once more: didn’t order, wasn’t present, and so on; his role was and is that of an SJA. What of interpreters present during searches, like that which took place in February? Are the interpreters employed by J2, GTMO’s intelligence division? Massucco thinks that they are.
One more topic, that of attorney-client meetings, and the confusion surrounding the rules for them. There is no content-inspection of attorney notes for such meetings, right? Right, answers Massucco. And yet, the lawyer argues, guards have sought to look at my notes before and after meetings. Massucco attributes this to neophyte guards, who need instruction about search procedures. Schwartz adds that, on at least one occasion, a guard told him that the search reflected advice from Massucco’s office. More from the attorney follows, on non-legal and legal mail. How many legal bins does Bin Attash have? Lots, answers Massucco; they are marked as such. The witness suspects that Bin Attash might even be confused about which bin is for legal stuff and which is for non-legal. (Non-legal material, moreover, is what has so tested the storage capacity at Guantanamo.) Okay, how many different stamps has GTMO used to mark item as acceptable? Five or six, guesses Massucco.
Learned Counsel for Bin Al Shibh, James Harrington, clarifies one or two things, among them the conditions giving rise to searches of legal bins. These happen during attorney meetings, and are for contraband, says Massucco. The witness affirms that he can tell the guards his legal view of whether a search is appropriate or not. For example, he has told guards to remove documents containing contraband---some zip ties---and to pass them back to defense counsel. But Massucco doesn’t remember if Bin Al Shibh’s legal bin was searched back in February, or if it has been searched since. The detainee, Massucco says, certainly has alleged as much to Massucco, however. Harrington switches from legal bins to books. Again, Massucco can’t speak to this in any detail, as the cataloging is the province of Guantanamo’s librarian. Finally Harrington asks about The Black Banners. Here, the witness acknowledges that contraband-qualifying books were found and seized, though he cannot remember whether Soufan’s book was taken from Bin Al Shibh specifically. A few words more, and Harrington is done---and with him, direct examination.
The cross belongs to prosecutor Jeffrey Groharing. The latter begins with Al-Hawsawi's bins, and the privileged items taken from him (and displayed earlier on our screen). The witness accepts that these were written in English. So Ruiz was advising his client in that language? Massucco doesn’t know, and doesn’t care, he says---but only knows that those were put up on screen and described by Ruiz. He recalls, though, that Ruiz, during his testy exchange with the witness in February, had shown Arabic and English versions of the document to Massucco.
Groharing asks about how Massucco instructs guards on search procedures. That is an ever-evolving task, the witness explains; he advises the guards of the judge’s orders, and provides them with copies where needed. But is Massucco aware of any content searches of Bin Attash’s materials, privileged or not? Not to his knowledge, barring only a book about Sharia law and another book, regarding computers. (Bormann’s objection is overruled; she notes that Massucco has disclaimed personal knowledge regarding the details of searches.) What about legal materials belonging to KSM, asks Groharing. Massucco says he investigated an October allegation, and discovered that items indeed had been seized from KSM and reviewed. These included newspaper articles and other printed material---printouts, apparently, from the “GTMO Watch” blog. None of these items bore any Guantanamo markings whatsoever, a problem that raised concerns among the guard force. (Wait, Nevin protests: the question concerns legal items, not printouts.) The witness notes that the blog printouts were dated in September, thus meaning that they could not have been processed through legal mail channels at Guantanamo; the only means was through the court, says Massucco, or through an attorney meeting. And it turns out, he adds, that KSM had an attorney meeting during the week in question. The current non-legal setup is a problem, in the witness’s view. Massucco accordingly believes that defense counsel should have a means other than non-legal mail, to pass on documents personally.
Groharing shifts gears: at least one seized item, which was unmarked, was apparently Al-Qaeda propaganda, right? Massucco tells him that one such document had a depiction of coffins draped with American flags, with a picture of the Twin Towers in the back. And this was found in KSM’s cell, unmarked? Right, says Massucco. The problem here, Massucco says, isn’t the content per se. It is instead that, since counsel forswear use of the legal-mail channel, they can only transmit documents as non-legal mail, or pass them on to their clients by other means. His complaint is process-oriented, he Massucco seems to say.The court interrupts: lunch time until 13:45.