Published by The Lawfare Institute
in Cooperation With
Following the two morning sessions, Col. Pohl called the commission back to order after a lengthy Memorial Day lunch.
Before digging into substance, the Court heard various grievances from Mr. Nevin on behalf of his client, Mr. Mohammed, regarding the facility. While some of the complaints were outside of the purview of the commission, Col. Pohl sympathized with the complaint that that air conditioning in the holding containers was far too strong. He seemed to agree that the guard force’s impression that the air conditioning was unchangeable was misguided: “I think between you and I, one could agree that adjusting the thermostat that’s adjustable is not an unreasonable request.” Mr. Bin’Attash then interjected, heightening the seriousness of the complaint: “It’s almost like a cold freezer. I mean it’s like torture.” Col. Pohl, declaring that he’d addressed the issue, moved swiftly along.
Mr. Nevin brought the commission back to a topic that dominated the morning’s sessions: differentiating between legal and non-legal mail for security screening purposes. Mr. Nevin spent a fair amount of time rearticulating and agreeing with Mr. Connell’s points from the morning session, but took particular issue with the limits on the amount of non-legal mail that detainees are permitted to send. Mr. Nevin pointed out that in many capital cases, juries have not chosen to impose the death penalty based on pleas offered by family members and other loved ones of the accused. To limit the detainees’ access to sending mail would be to limit their opportunity to build that kind of potential defense to the death penalty. As such, Mr. Nevin argued, even communication that isn’t strictly legal could still be considered as part of the work product of the building of the case and, as such, should not be limited or heavily screened. Further, if the legal team is helping with those communications—either by sending them or facilitating the writing of such communications—the product should fall under the gambit of attorney-client privilege:
I think it’s important to note that . . . attorney-client privileged communications are [not] limited to communications which are themselves the provision of legal service, or which constitute the provision of legal services. So, in other words, the attorney-client privilege is not limited to just me saying to Mr. Mohammed, Rule 505 so and so means such and such in my opinion as a professional. It goes a lot further than that. IT’s everything that permit[s] me, or any of the other lawyers on the team, to facilitate the provision of legal services.
Col. Pohl was not entirely convinced, pointing to Moussaoui as a case that stood for precisely the opposite proposition. Mr. Nevin, squeezing himself out of a potential bind, explained why that case wasn’t precisely on point, noting how different these military commissions are to typical criminal cases. For example, as part of defense strategy, defense counsel has to make contact with witnesses that could potentially be affiliated with al Qaeda. To push this point home, Mr. Nevin offered an amusing anecdote: "When I sat for my security clearance review the last time around, the first question out of the person’s mouth was, 'Have you associated with anybody who is known to be a terrorist or accused of being a terrorist?' I said, 'Ma’am, do you know what I do for a living?'”
After Mr. Nevin sat down, Mr. Ruiz offered his two cents on the mail clearance issue. Mr. Ruiz questioned the entire process, wondering aloud what function was served by the extra clearance procedures that some mail is subject to. He questioned whether national security interests were really propelled by extra levels of review and posited that “this is not about national security.” Instead, to Mr. Ruiz:
This comes down to a content review issue. It comes down to the fact that when this information was released publicly, the prosecutor, or somebody at a different level, did not like the fact that this information was available for public review. This does then come into the area of propaganda and regulating with that government calls propaganda. Well, as I’ve said before, there is a stark difference between a national security issue and an issue where we just don’t like what a person has to say. And as I said it before, I’ll say it again, it is decidedly un-American to try to regulate that.
After that biting critique from Mr. Ruiz, Col. Pohl turned to the remaining defense lawyers to see if they wanted to chime in. Naturally, the defense bar generally opposed the heavy screening of their client’s outgoing communications, but no one went quite as far as Mr. Ruiz. Mr. Harrington, seemingly more sympathetic to the government, understood that everyone was looking to settle on a system that worked, but argued that the current system did not fit the bill. Mr. Schwartz was next up, admitting that all this back and forth about what the processes are or are not was pretty confusing: “Honestly, I guess I don’t know anymore.” Finding his footing again, Mr. Schwartz argued that perhaps there should be a distinction made for mail intended for third parties like NGOs from mail targeted to the media. Col. Pohl agreed, noting that he was “going to have a lot of subparagraphs in this order to go to all of the possible recipients.”
Col. Pohl then pivoted back to trial counsel for their thoughts on the mail issue. Mr. Trivett, taking the lead, argued that the distinction between legal and non-legal mail was not as clear cut as the defense would have the court believe, because “if we are relying on the imagination of creative, talented, learned counsel as to what may constitution provision of legal services, it never ends, and it’s not something that can ever be regulated in any way, and that can’t be the case.” Despite the compliments, defense counsel surely disagreed with this assessment. And, as was perhaps inevitable at this point, Col. Pohl and Mr. Trivett ultimately went down a lengthy rabbit hole of their own, attempting to draw distinctions between legal and non-legal mail, the legal consequence of intended third party audiences, and privilege. When it was finally nearly said and done—and after Mr. Connell, also of the trial counsel, noted that the commission had probably just talked itself into circles—Mr. Ruiz chimed in with an observation that likely captured the mood of the court: “I’m not . . . understanding exactly what it is the prosecution means and what it is they’re going to do that they’re not already doing and haven’t already done.” Col. Pohl agreed and ordered the government to provide some concrete guidance as to its screening and classification procedures.
The session finished up with Col. Pohl addressing lingering motions filed by the various defendants, most notably the request for a phone line with which the defendants could communicate their lawyers. The government maintained that this was “nondoable” because of the lack of appropriate infrastructure for such a phone line (due to a concern about classified information) but also unlimited access between the detainees and their lawyers would be practically unfeasible. Ms. Bormann, on behalf of the defense, dismissed the notion that a secure phone line from Cuba to the United States was impossible to establish as pure “nonsense.” Other defense attorneys agreed. Col. Pohl, admittedly “not a technology guy,” wasn’t clear on if it would be possible to set up secure lines between GTMO and various attorney’s offices, but if it were a requirement and “the technology exists then it’s a matter of making it happen.”