June 11 Session #4: Spiraling Towards Contraband Policy

Defense lawyer Richard Kammen speaks about AE27L---a motion to enforce compliance with a commission order, so far as concerns spiral notebooks, eyeglasses, writing utensils, eyeglasses and similar items used by Al-Nashiri's lawyers during meetings with him.  (The court had addressed such issues in a prior ruling; the question is what, exactly, that meant.)  It seems the government’s beef has to do with spiral notebooks only---at least we can so glean from remarks by prosecutor Maj. Christopher Ruge. Writing instruments and so forth, he says, have never been denied to the defense.  But spiral binding presents a risk---and thus can be deemed unacceptable for attorney-client meetings under GTMO rules.

Back to Maj. Ruge, who stresses that his is not a slippery slope argument.  The court might not see such a slope, but it is quite skeptical nonetheless.  You’re saying that somebody is going to take the spiral binding from a notebook, and use it in a more dangerous way than one could, say, use a pen or pencil---both of which are okay to use in these meetings?  Rather than meeting the court's question head-on, the prosecutor pivots: this issue concerns the day-to-day operation of a detention facility.  How to operate it is a matter within the discretion of the base commander.  And here, he reasonably decided not to permit the introduction of spiral notebooks, and thereby reduced a risk in the first instance----rather choosing to permit the risk but mitigate it.  The military judge still isn’t persuaded; don’t GTMO staffers inventory all the lawyers' personal items before and after meetings anyway, whatever they may be?  Again it's pivot time: the lawyer underscores the lack of prejudice to the accused.  Justice doesn’t depend on the difference between a legal pad and spiral notebook, Ruge says in so many words.

He said, she said.  Kammen finds the dispute over the risk---prosecutors say it’s real, defense lawyers say it is imagined only---to warrant an evidentiary hearing.  Judge Pohl asks about prejudice; Kammen insists there is prejudice.  If a meeting restriction comes down during an attorney visit to GTMO, then the lawyer’s spiral notebook is immediately deemed unacceptable.  The lawyer must then switch notebooks midstream, thus creating a logistical burden.  The ever-changing nature of the problem all but assures such change ups will take place in the future, too.  Furthermore, GTMO is unique in its no-spiral-binding-ness; it’s unlike any other federal detention facility in America.  These rules are imposed willy-nilly, with no notice, Kammen argues.  There is nothing in the commission’s prior order to suggest danger arising from spiral binding; ditto prior Guantanamo policies for detainees.  When did spiral notebooks get so bad?

There’s a bit more from trial counsel, about precisely what Judge Pohl has said about contraband before---and that ruling’s implications for notebooks used by Kammen and company.  Judge Pohl: is there any standard whatsoever for “contraband,” other than “an item that the Commander of JTF-GTMO brands impermissible?”  Ruge’s return serve concerns, again, the lack of prejudice.  Steno v. Trapper Keeper?  For Ruge, it’s just not something that impinges on the accused’s rights.  Kammen concludes our discussion with his two cents: one, there’s a dispute about the true danger posed by spiral notebooks; and two, the rules in fact prohibit the use of pens and such (!), but those rules go unenforced---for now.  What if that changes?