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

6/21 Motions Session #2: Welsh, Connell, and Harrington

Wells Bennett
Friday, June 21, 2013, 12:59 PM

The prosecutor Robert Swann returns to the podium; our JTF staffer returns to the witness stand, having run his needed errand.  Al-Baluchi, the witness says, just told me that in fact, his teeth had shifted---one was chipped, apparently---and caused him discomfort overnight.  Consequently the accused elected not to join the day’s discussion.  The commission therefore finds the two absentees, Al-Baluchi and Al-Hawsawi, to be so as a matter of informed choice.

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The prosecutor Robert Swann returns to the podium; our JTF staffer returns to the witness stand, having run his needed errand.  Al-Baluchi, the witness says, just told me that in fact, his teeth had shifted---one was chipped, apparently---and caused him discomfort overnight.  Consequently the accused elected not to join the day’s discussion.  The commission therefore finds the two absentees, Al-Baluchi and Al-Hawsawi, to be so as a matter of informed choice.

Now CAPT Welsh---until May 31, JTF-GTMO’s Staff Judge Advocate---awaits questioning from James Connell III, defense lawyer for Al-Baluchi.  They’ll talk first about how written communications orders work at GTMO these days.  This calls catching up on recent history.  The Al-Nashiri order naturally superseded any JTF policy governing such communications, Welsh testifies.  Reviewing the document with the witness, Connell squints especially hard at Admiral Woods’s proposal for a military commission privilege team.  This was, Welsh agrees with the lawyer, supposed to involve separate personnel and facilities, and apply across commission (not habeas) cases once implemented.  There nevertheless was, apparently, a short---a matter of days---period in which commission and habeas teams intermingled, so as far regarded cases other than Al-Nashiri.  But today, if Connell casts aside the OCDC’s contrary command---remember defense lawyers have concluded they cannot ethically do this---and submits material for review, the same personnel would review that as well as any other materials put forth in other commission cases.  That’s right, says Welsh.

A bit more now on Connell's chosen theme.  He asks, and the witness agrees, that JTF has waived compliance with the communications order’s “acknowledgment” provision (which defense counsel had refused to accept in the first place).  When asked, Welsh also tells Connell that he doesn’t think such a provision would be necessary from an operational standpoint.  What about the order’s requirement of a “local courier authorization letter,” which Connell has sought but has been unable to obtain?  Welsh doesn’t know whether such letters in fact have been required, but refers him to dutiful members of the Staff Judge Advocate’s office, who happen to be in court.  The lawyer has been after such letters for a while, apparently.

So much for the rules for communicating in writing; on to the rules for meeting in person.  Connell has in mind Woods’s logistics order, and its approach to various sorts of “contraband.”  Judge Pohl’s Al-Nashiri order would supersede these, the witness says to the lawyer.  He adds that, despite the order’s promise, JTF-GTMO never has set out rules for lawyers’ meetings with detainees who aren’t their clients.  More technical stuff about meetings: the witness tells the court and counsel that, under the order, JTF can peek at electronic files brought into the camp by counsel, like CDs and what not---though the review here would be for appropriate markings only, just as it would be in the hard-copy setting.  What about video presentations contained on such instruments?  The witness acknowledges that there’s no clear guidance for that. He surmises, on prompting from Judge Pohl, that a privilege review team could review a video on fast forward, perhaps without sound---those arrangements effectively minimizing the intrusion.  So here, we’re concerned only with information contraband?  Right, affirms the witness, who cautions that he’s left his former post and doesn’t speak for the camp.  (He has in mind the Lynne Stewart case, where information from a third party was smuggled into a federal prison.) Defense counsel sees an obstacle: how can a privilege team look at content on a CD, but still somehow not review for content on a CD, asks Connell.  Obviously, no document stored on the CD would be marked, and the witness says he understands the problem.  

Some general baseline review questions follow.  Welsh thinks the review was meant to be a one-time affair, and to obviate the need for future searches of legal mail; had advised Woods of concerns about the attorney-client privilege problems in play, he says.  At the time of the review, the witness also had help to train JTF guards to handle “legal mail.” The latter was defined, in essence, by JTF policies established in a May 2008 JTF memorandum (which was itself similar to Judge Hogan’s communications order in the habeas cases.) Under this regime, if a guard saw a marking reflecting clearance by the habeas team, Welsh says, that would bring any review to an end. As for how “legal mail” was then defined, the term hinged on whether a document was “related” to the defense.  The difficulty here is not lost on Connell, who again asks Welsh about an apparent paradox.  How could a guard know what is and is not so related?  They would know because counsel would be present, Welsh answers; and because of, say a document’s particular format.  The guard force could recognize a legal pleading.

By definition, the baseline review involved a search of Connell’s client’s legal bins.  The detainees' bins were rifled through on October 11, 2011, Welsh says, and seized items later were examined by cleared personnel. And to be clear: items of concern were, in fact, seized from Al-Baluchi.  Connell says defense counsel objected to the baseline review thereafter, and Welsh agrees---though he doesn’t remember when exactly.  After Al-Nashiri, and Judge Pohl’s order, Welsh had come to view the latter as governing lawyer-signed correspondence, or other correspondence visibly between lawyer and client, and draft material.  The definition was narrow, Welsh says.  And he recalls an inquiry from the Convening Authority about defense counsels’ concerns about the review---though he doesn’t remember specifics, including his response. Of course Welsh wouldn’t, he says, have shared with the Convening Authority any information about materials seized in the baseline review.  Still, he imagines he could have told the Convening Authority about the Al-Nashiri order’s issuance, and his office’s effort to devise an approach going forward.

Connell queries Welsh some more---about “privileged communications” under GTMO policies, and about the content and means of communications between his former staff and other lawyers in the DOD regarding the written communications order---and then wraps up.

Learned Counsel for Ramzi Binalshibh, James Harrington, is also interested in the baseline review---both generally and as applied to his client.  Welsh was present for some searches, he tells defense counsel, and retained seized items for some time afterwards but then returned them as appropriate.  Illustrating, he mentions the Al-Quds newspaper.  It is news---and thus obviously not dangerous---and would be “grandfathered in” under review policies.  The witness likewise reaffirms the lack of advance notice given to detainees or their lawyers before the review---but also says that JTF later discussed the review with at least one detainee.  Welsh himself spoke to KSM about the review, too.  It also turns out that, initially, materials were taken from Binalshibh’s cell but then returned as “grandfathered.”

Next defense counsel reviews Welsh’s role in the creation of a privilege review team, and in the generation of the two Woods orders.  On the first subject, Welsh generally essentially answers as he did earlier on.  The privilege review team was comprised, at the time, of individuals who had reviewed materials in habeas cases; and they would only disclose privileged materials, Welsh tells Harrington, in the event of a threat of harm to the detainee himself or to others.  Does Welsh agree that the Woods orders’ contraband rules would significantly burden defense counsel?  The witness says that he can see Harrington’s perspective here. Nevertheless, Welsh pushes back on Harrington’s suggestion of absurdity in JTF procedures, noting that DOJ, DOD and defense counsel have worked together, for example, to ensure that news items mentioning lawyers’ clients have been admitted to the camp without difficulty.  As before, the once JTF-GTMO SJA acknowledges non-enforcement of certain provisions in the Woods orders; given that, Welsh thinks an update to the orders would be helpful.  But, he says, during his tenure Welsh was reluctant to advise JTF to adjust the orders too swiftly, given that his office expected judicial rulings (in Al-Nashiri and even this case) about their legality.  Finally the witness emphasizes that he would work to facilitate attorney-client meetings, though visitation policy matters were within the commander’s command, not Welsh’s per se.  A few more questions, and Harrington says he has nothing further.

We pause now, for a lunch break.

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.

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