Al-Nashiri #8: You've Got Mail--And I'm Going to Read It!

Benjamin Wittes
Wednesday, January 18, 2012, 1:24 PM

By Benjamin Wittes & Ritika Singh

The Al-Nashiri military commission reconvenes this morning at 9:40 after a lengthy and unexplained delay. There are four matters left for Judge Pohl to consider: Issues #2, #4, #5, and #7 on our summary from Monday night.

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By Benjamin Wittes & Ritika Singh

The Al-Nashiri military commission reconvenes this morning at 9:40 after a lengthy and unexplained delay. There are four matters left for Judge Pohl to consider: Issues #2, #4, #5, and #7 on our summary from Monday night.

Judge Pohl begins with defense motion AE027, about which we heard testimony yesterday from Rear Adm. Woods and which deals with searches of legal mail. Judge Pohl asks trial counsel for a a copy of Adm. Woods’ order. He says that both sides are unhappy with the state of affairs. Annnnd...we’ve had a blackout. The video feed went down for about a minute. Initially, we were not sure whether this was for security reasons, but it appears to have been a technical glitch.

Now we’re back--and Judge Pohl is reading something, presumably the Woods order, while trial counsel Commander Andrea Lockhart stands at the podium.

Lockhart says that after the November hearing, the prosecution was invited to provide an alternate solution for the legal mail issue that also addressed the defense’s concerns. All parties, she says, agree that all material going in and out of the camp can be searched for physical contraband. In the government’s proposal, says Lockhart, an independent team will review material that is privileged or sensitive. Thus, the PRT was established so that they could receive mail from the defense to the client; there are three categories of mail that can be sent to him, thus avoiding regular mail service to Guantanamo and its detailed searches. The government has been trying to reasonably accomodate the defense's concerns, she says. As an independent, walled-off entity, the PRT receives such mail, inspects it for physical contraband, and reviews that it properly marked. It is the defense’s responsibility to tell the PRT what is privileged material and what isn’t, and it is their responsibility to make sure the pages and material is properly marked. Adm. Woods was very clear that they are not doing any kind of content analysis; they accept the defense’s representation at face value unless there is obvious informational contraband--like a map. If the defense feels that there is a need for the detainee to receive a specific document that the PRT has identified as contraband, it has the ability to articulate that to the PRT and ultimately to Judge Pohl.

Judge Pohl asks whom the PRT ultimately works for. Who tells them what to do and not to do? Whom are they accountable to? Lockhart says that they are an independent body, and initially they are accountable to the judge, to the “terms of the order” the government is asking Judge Pohl to issue. They must comply with it. If Judge Pohl determines that the order has not been properly followed, this is considered as not complying with the terms of the PRT's employment, says Lockhart. Judge Pohl says the PRT sounds like an “amorphous concept.” Lockhart acknowledges this. Why not embed the PRT with the defense, Judge Pohl asks. Lockhart says that it is imperative that the PRT be “balanced,” without allegiance to the defense or the government. Judge Pohl expresses skepticism at the “independence” and allegiances of the PRT. Lockhart then draws Judge Pohl’s attention to Bismullah v. Gates, which, she says, upheld the use of a privilege team and held that no privilege was waived as a consequence of it. Judge Pohl says there has been a habeas order on this issue in place since 2008 which has been dealing with the exact same subject matter and which habeas counsel has been complying with. Lockhart says the orders are very similar. So why not, he asks, just adopt that one? Why are we reinventing the wheel in this case? Lockhart says that the criminal and civil contexts make the two cases different--particularly the availability of CIPA in the criminal context. Also, she says, the habeas order is supervised by an Article III judge, which is different. So there have to be some differences, albeit small ones, in the orders, she says. Judge Pohl asks whether taking the habeas order and modifying it--simply crossing pieces out and writing in new language in spots--will work. Lockhart agrees that that might work. He asks: then why are we drafting a whole new order? Lockhart says that the government has done just that--modified the existing order. The government started with the habeas protective order, she says. She asserts that the government sought input from the defense and expanded the order in order to benefit the defense and the accused in some ways. Lockhart asserts that the government has no interest whatsoever in the defense’s attorney-client material, and is trying to balance its security interests with the defense’s needs. She emphatically states: “The legal mail is not being read.” She and Judge Pohl then have a discussion about the details of the PRT’s procedure. The government’s intent, she says, is to incorporate the November order and even expand it for the benefit of the accused. The PRT, she says, works. It’s been used in the habeas context and as Adm. Woods testified yesterday, there have been no complaints. The PRT is walled off from the prosecution and from the command. There are non-disclosure agreements. She then clarifies that while civil contempt is not available for military contractors in a military commission, if Judge Pohl issues an order and that order is violated, that can be the basis to terminate employment and remove their security clearances. So there are consequences if members of the PRT violate the order. Judge Pohl is the final arbiter in the event of a dispute, she says. She calls attention to U.S. v. Kassir--in which a federal court upheld the concept that mail had to be read because it was reasonably related to institutional security concerns. She then cites Bismullah again. She then turns to the chief defense counsel’s written guidance. She points out that the guidance didn’t apply to this case, because a military judge was presiding. If Judge Pohl adopts the government's proposed order, she says, it would moot the guidance of the chief defense counsel. The government believes that its proposal is “reasonable” and “just” in addressing both the defense’s concerns and security concerns, she concludes. She sits down. Defense Counsel Lt. Commander Stephen C. Reyes argues that the starting point shouldn’t be Adm. Woods’ memorandum, but he doesn't get very far. Judge Pohl cuts him off.  With properly marked material, all the PRT is doing is inspecting for the proper labeling, not reading. It’s doing the same thing as the guard force would otherwise be doing--inspecting for improper markings and improper material--and it’s doing that in the presence of the defense courier. Judge Pohl agrees that the memo is not as clear as it should be. But what part of this is a problem? It seems like it’s better than what it replaced? Reyes says that the review part is the part that is most troublesome to the defense. Plain view of attorney-client information is in and of itself a violation of the attorney-client privilege, he argues. Judge Pohl seems skeptical of this, asking about a hypothetical piece of paper stamped “TOP SECRET” yet also marked as privileged. Would noting the classification markings and reviewing the document be a problem? Reyes responds that yes, this would be a violation if the team read this. This material would be coming from defense counsel, who have an obligation not to mislabel it. In a Bureau of Prisons case he cites, the only thing the guards are allowed to look for is physical contraband if something is marked as legal mail. Judge Pohl tosses Reyes another question: If this is a problem, why are PRTs used in habeas cases? Why do the classification needs of the government seem to trump the attorney-client privilege as Reyes describes it in those cases? Reyes argues that in the habeas cases, the teams are only looking for physical contraband, not for classified material. Judge Pohl says he hasn’t reviewed the habeas order, but he asks whether the PRT in habeas cases don’t review the contents of mail. Only physical contraband, Reyes says. This is consistent with Supreme Court law, constitutional law, and--before October--all that was going on at Guantanamo Bay. What the defense has proposed, he argues, is consistent with that and what Judge Pohl was trying to do in November. Fundamentally, says Reyes, there is no difference between what the defense is asking for now and what the procedure was before Adm. Woods’ memo. Why employ former law-enforcement members, why employ translators, and the like, asks Reyes, if all you are doing is looking for stamps? There are a number of other issues, he argues. What power does the Commission have over goverment contractual employees? The only remedy available is that they can be fired or disciplined, which is counterintuitive. At the end of the day, it’s about trus. As officers of the court, it is the defense's responsibility to make sure that legal mail is properly marked, and that should be honored, and it should be examined only for physical contraband. Pohl asks whether the defense “can live” with the definition of the mail categories in Adm. Woods order. Reyes says he cannot. What part do you take issue with, Judge Pohl asks? Reyes says he objects to the distinction between legal mail and other case-related material. Legal mail, says Reyes, should be anything that is related to the representation. The two go back and forth on this for a while--whether it would require more than the defense’s acquiring a second stamp to handle the second category of information. Reyes says he understands the importance of protecting a legitimate government interests--he doesn’t begrudge the government its need to inspect for contraband. The core for him is make sure the legal mail isn’t read. He and Judge Pohl then have a brief discussion of what Judge Pohl ordered at the last hearing, and the way the government described it. Then Reyes sits down. Lockhart approaches the podium to answer a question about the habeas order for Judge Pohl. He says that it only appears to be a physical contraband review. Lockhart acknowledges that it only says physical contraband, but she argues that the order does not preclude a cursory review of the type Adm. Woods has ordered. Lockhart goes out on a limb here, saying that she thinks that’s what’s probably happening. Judge Pohl rejects the speculation and asks whether she could live with the terms of the habeas order, since it seems to be consistent with what he ordered in November. He says he can’t fathom that a document marked “TOP SECRET” would go right to the detainee under the habeas order. So if he adopts an order with the same language, would she have a problem with that? Lockhart expresses concern that under the habeas language, what would a PRT member do if something obviously inappropriate showed up marked as legal mail--something that simply can’t go through? Judge Pohl asks, in response, why if that concern is valid, the government has been able to live with the habeas order. Lockhart notes that the reason for the Woods order was that there was material getting though that should not have been getting in--like Inspire magazine. The level of intrusion caused by the PRT is minimal, if that, says Lockhart. The genesis for the memo was at Judge Pohl’s request, Lockhart reminds him, so they could find a better way to handle mail and get JTF-GTMO out of the business of reading mail. If anything, she argues, this expands detainee rights. She emphasizes again that there is no waiver of the privilege involved in anything the government is asking for. Judge Pohl asks Lockhart whether privileged information should be treated differently from case-related material--whether two documents, one stamped as attorney-client material and the other stamped as case-related material should be treated identically. Do you have any objection to them being treating the sameway ? Lockhart says the initial review should be the same, but the handling might be different. Lockhart addresses the question Reyes posed about why the PRT is composed, among others, of specialists and experts. Lockhart says that this is necessary to determine “subject matter content.” When members see a map, for example, they need someone who can understand what it is. Judge Pohl presses her on the point, saying that it doesn’t take any expertise to see whether a document is marked “TOP SECRET.” Right, she says, but then when it is marked as such, you need someone who can evaluate it, and the whole concept of the PRT is that it shouldn’t have to go outside of itself and draw on DoD expertise. It should be independent. She and Judge Pohl then have an exchange about who controls the PRT. And Judge Pohl comes back to his bottom line: Can she live with the habeas order language. She says no. The habeas order is “deficient,” she argues, because it doesn’t allow this “plain view” review. There needs to be language in there to deal with informational contraband, she believes. If the government can ensure that the mail is marked properly, sealed, and delivered via a defense courier--the government is satisfied with that. Her concluding remarks center on Adm. Woods. The government, she notes, was invited by Judge Pohl to submit an alternative proposal to balance the interests here. Adm. Woods reached out to defense counsel, and his order attempted to balance the government’s interests and the defense’s interests; it will protect the sanctity of the attorney-client privilege, and it will protect the security interests of running a detention facility. She sits down. Reyes first challenges the notion that Adm. Woods really reached out to the defense. He then argues that the Ghailani case was tried at Guantanamo first and ultimately tried in the Southern District of New York. In Ghailani's Special Administrative Measures, there was no PRT, no plain view, no review. There was no intermediary. The mail was delivered directly to the detainee. The burden should be on defense counsel, he argues.

Judge Pohl wants to know whether Reyes has a problem with a rule in which if something jumps out at the reviewer as inappropriate, he can send it back to defense counsel. If there’s a carefully crafted additional paragraph added to the habeas procedure that deals with the plain view and with the remedy that the material goes back to the defense for clarification, is that a problem? Reyes responds that the plain review itself is prohibited. If it’s just classification markings, he says, that might be okay, but the question is what they can do afterwards. And the government takes a very liberal view of its authority

Reyes says his final point is that the government says that it is not treading on the attorney-client privilege of the defense. But the order as written allows all kinds of disclosures. It in no way protects the privilege. If all they are doing is “looking for markings,” what difference does it make who looks at it, asks Judge Pohl? The judge is skeptical that it makes any difference. Reyes says there is a fundamental difference in who is looking at the mail.

Judge Pohl asks whether sending suspect mail back to the defense, rather than disclosing it further, would address his concerns. Reyes says it will not, because the problem is also the people who are “reading” the mail--law enforcement personnel, for example, who shouldn’t be reading the documents in the first place. Reyes says that Judge Pohl’s ruling will serve as a “guiding post” for other cases. But Judge Pohl rejects this as a consideration. His job is to rule in this case. What others do with his ruling is their business. Commander Lockhart concludes with two brief points about the consequences the members of the PRT will face if they violate the terms of the order.
Judge Pohl then rules--or not: He wants the defense to submit a complete draft order within seven days that it believes will meet its needs. He’s not saying he will sign it, he says, but he wants the defense to draft something. The government, he says, will then have seven days to submit a response with a clear definition of what constitutes “plain view,” a definition that does not include reading the material for content. He will then issue a written order. Lockhart then asks the Judge for a “health and comfort break”--even the government lawyers need to go to the bathroom. A brief recess follows.When the Commission reconvenes, Reyes and Judge Pohl discuss briefly what to do until the final order comes into existence in a few weeks. Judge Pohl doesn’t think it makes any sense to work through the differences between the two sides when an order is going to come very soon. Lockhart then approaches the podium to make two brief points. First, she emphasizes that JTF-GTMO is in compliance with the November order. Second, she talks about the differences between the habeas procedures and this procedure, emphasizing that the volume of material in this case will dramatically exceed what the habeas order was intended to accommodate.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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