Armed Conflict Criminal Justice & the Rule of Law Terrorism & Extremism

6/20 Motions Session #4: Who Reads Lawfare, Anyway?

Wells Bennett
Thursday, June 20, 2013, 6:32 PM

Remember CAPT Thomas Welsh, the Staff Judge Advocate at GTMO? He is our next witness, appears in person, and is questioned by KSM lawyer David Nevin.  Welsh had about three months’ experience at the camp before Admiral David Woods assumed command in 2011. Welsh left his post at JTF GTMO on 31 May.

Published by The Lawfare Institute
in Cooperation With

Remember CAPT Thomas Welsh, the Staff Judge Advocate at GTMO? He is our next witness, appears in person, and is questioned by KSM lawyer David Nevin.  Welsh had about three months’ experience at the camp before Admiral David Woods assumed command in 2011. Welsh left his post at JTF GTMO on 31 May.

Apropos of Woods, the defense attorney wants to tread cautiously.   Thus he asks: what does the witness know about the former JTF commander's recent testimony, and other testimony in the case?  It turns out Welsh does know some things.  CAPT Welsh says he followed the proceedings on (ahem) a little mom-and-pop blog called Lawfare, and from Twitter.  At Lawfare, Welsh had a look at Admiral MacDonald’s testimony about his role as Convening Authority.  More so, Welsh testifies, than he read of posts about Admiral Woods’s testimony.

The latter, with the concurrence of SOUTHCOM, ordered the baseline review.  CAPT Welsh provided advice in connection with that---as did others, the witness explains.  But the review was not ongoing when Welsh arrived at the camp, in May of 2011; only discussions about the review were underway.  As for the review’s mechanics, Welsh was not present for a search of KSM’s cell, though he was, he says, present for a review of materials recovered from the cell.  (The latter took place in a conference room.) The witness cannot remember how many bins were taken from Nevin’s client’s place; the detainee had “quite a collection,” so Welsh figures more than two bins were taken.  Neither CAPT Welsh nor anyone else advised Khalid Sheikh Mohammed of the plan to seize and, later, search.  Not all the confiscated stuff was legal in nature, Welsh explains to Nevin.  And though he cannot recall KSM’s bins, he generally recalls other detainees’ bins. And these were generally disorganized and not neatly divided into legal and non-legal possessions.  The implication: JTF would have to do some sifting, and couldn't easily avert their eyes from an obviously law-only bin.

Unsurprisingly, Welsh says he knew he might encounter privileged materials in performing the review.  But he didn’t see any such material so far as concerned the accused in the 9/11 case.  Earlier, JTF staff had uncovered privileged material in Al-Nashiri, before CAPT Welsh warned them off. Well then, Nevin is confused about some of KSM’s correspondence with prior counsel.  After the review, this had been returned---to Bin Attash.  CAPT Welsh heard about this after the fact; he didn’t learn of the stuff's privileged status at the time of the review.  Speaking of "after the fact," the witness thought the detainees themselves would tell the attorneys about what had transpired.  But originally, Welsh says he and Admiral Woods planned to notify defense counsel about the search---but that intention was superseded by events, when the detainees told their lawyers.  So was it your decision not to advise the lawyers in advance, that you planned to search legal materials?  No, says Welsh.  It was Admiral Woods then?  Welsh says Woods did not decide so affirmatively, but instead planned for the JTF group to execute the review, and then later explain to defense counsel about any seized items that raised concerns. The witness certainly knew that the issue would land him in the commissions witness chair, he adds.   

The witness had a hand in drafting what we now know as the “Woods orders,” in late December. The notion of a privilege team had been discussed, and requested by defense lawyers in various cases, for some time.  And the draft woods orders were a collaborative effort, which coalesced in September or October of 2011.  Precedent-wise, the JTF group looked---surprise---to the protective order entered by Judge Hogan in the Guantanamo habeas cases.  Regarding contraband, and the Woods orders’ exception for materials “directly related” the defense’s casework, CAPT Welsh says he wasn’t responsible for those provisions. But he thinks the DoD General Counsel office built on them, while working from the habeas analog.

But did Welsh himself advise Woods to sign his two orders?  The former says he presented the documents to Admiral Woods, who took, read, edited, and then signed them.  Pressed again, the witness says he didn’t see any objectionable things---he would have flagged those were the case otherwise.  (On questioning from the court, Welsh clarifies: he agrees that, as Staff Judge Advocate, he gave an independent recommendation to his Commanding Officer, that the latter sign.)  Nevin refers to RMC 502, regarding the attorney-client privilege, to Welsh---who then points out the provision’s citation in the Woods order itself.  A pivoting Nevin asks about one order’s “same language” and “prior notification” requirements, for detainee-lawyer meetings.  These had a genesis in the habeas order, Welsh says---but he recognizes that the language rules are unenforceable in any event, given that conversations aren’t monitored.  For what it is worth, the rationale was to prevent side-conversations that might pose a security issue, Welsh says.

Woods’s written communications order is Nevin’s next topic, and he zooms in on its seemingly capacious, Commander-dependent definition of “contraband.”  What counts as “contraband” is entirely the Admiral’s call, correct?  Correct, answers Welsh.  Also correct, Welsh next replies, is Nevin’s suggestion that the “contraband” rule’s inclusive list is merely that---and not exhaustive, by definition.

What about “informational contraband,” mentioned elsewhere in the order?  There were a few different provisions covering this kind of contraband---one category of them clearly subject to a “directly related” exception, and thus open to protest by lawyers and resolution by Admiral Woods or his successor.  But another, including information on the status of or detention of detainees, or on perspectives about jihadist activities, wasn't explicitly subject to the exception, as Nevin describes.  Thus he now probes.  Did it occur to you, CAPT Welsh, that defense counsel might want to discuss historical jihadist perspectives with their clients, who happen to be accused of being arch-jihadists?  The witness doesn’t recall.  He did, though, understand the charges against the 9/11 accused. Well, then you didn’t you know that “historical perspectives” would form part of our defense in this terrorism case?  Welsh concedes that he probably knew that much.  Well, a lawyer who can’t discuss defenses with a client can’t put on a defense can he, Nevin posits---and the witness says he could agree with the supposition.  Nevin mentions the torture of detainees---surely you knew defense counsel would want to discuss the circumstances of that, right?  CAPT Welsh, responding, says he didn’t quite think through the defense’s perspective about the issue.

Prompted by Nevin, GTMO's former Staff Judge Advocate agrees that the defense had little time to comment on the draft communications order, on the day before the Christmas holiday began---and that Admiral Woods nevertheless signed his order on December 27, one day after Christmas itself.  Nevin sums up: can you understand that the ability of the lawyers to represent clients was in disarray by the time all this happened?  Welsh won’t buy the premise, and emphasizes other factors that called for the orders’ issuance quickly.  One of these was Al-Nashiri, and Judge Pohl’s order from the bench.  That called on us to expand the “aperture,” meaning the working definition of legal material.  Welsh sought to move swiftly, so that lawyers could bring more items to the camp and share them with clients.  (But wait, says Nevin: the contraband provision narrowed, it didn’t expand.  Right, Welsh agrees.)   The witness also cites the quick pace of resuming commission cases---that also counseled swift implementation of Woods’ orders.

Welsh acknowledges that the Woods orders preceded the Convening Authority’s deadline for mitigation submissions, by 60 days; that the detainees faced sworn charges of terrorism during that period; and that a charge of terrorism would, of necessity, call for attorneys to inquire into their detainee clients’ motivations. And yet, as we’ve discussed, the “contraband” provision blocked any discussion with the accused of historical perspectives on terrorism.  Was that Welsh’s intention?  It wasn’t, he relies. Then Nevin asks, and Welsh agrees, that Admiral Woods---who would bless or reject items, as permissible or as contraband---wasn’t within the attorney-client privilege bubble.  So what could Nevin and company do?  Ah, the witness says, after the Christmas holidays, defense counsel still could have come back to Admiral Woods and protested the operation of the contraband rules, as handed down the prior month. That’s too rich for Nevin. We receive a document comprising 50 typed, single-spaced pages, and get two days to review it before the order comes down, and we are supposed to infer that Admiral Woods has an open mind on communications issues?  Welsh disagrees, but says he understands Nevin’s viewpoint.

We’re in recess until 0900 tomorrow.

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.

Subscribe to Lawfare