This week’s pre-trial proceedings in United States v. Mohammed, et al. resumed on Thursday for the fourth day of hearings and the third day with all of the accused present. Ordinarily, Khalid Sheikh Mohammed and the four co-defendants, accused of planning the 9/11 attacks, only make cursory appearances on Mondays as required by Presiding Judge Pohl to reaffirm their right to appear. Several tense moments punctuated the day’s proceedings, which also continued the week’s theme of the island courtroom’s technical difficulties impeding judicial process. The day began with defense counselor Commander Walter Ruiz continuing the examination of Rear Admiral David B. Woods. Similar to defense counselors’ questioning of the former Convening Authority for the Guantanamo Military Commissions, Adm. MacDonald, it was presented that when Adm. Woods took control of Joint Task Force Guantanamo (JTF GTMO) as commander, he was unqualified for the position. When assigned to the post, Adm. Woods had neither a specialty in criminal law nor any experience in prison facility management. Commander Ruiz was careful to note that, although the U.S. military runs multiple prisons in the U.S. and Adm. Woods never worked in any of them, he was assigned to manage the most controversial prison in American history.
‘I’m Not Sure Why Any Time I Mention the CIA It Is A Sustained Objection.’
Adm. Woods then testified that the protective orders in place under his command originated in JTF GTMO. He was unaware that a draft of the orders had been sent by Adm. MacDonald to his office. Next Adm. Woods stated that it was his understanding that the contracts of the privilege team, the individuals who screen detainee mail to determine if they are protected by the attorney-client relationship, came from the U.S. Defense Intelligence. Developing the topic of intelligence’s role on the island, Commander Ruiz inquired whether the CIA was present on the island under Adm. Woods’ command. The prosecution immediately objected to Commander Ruiz’s question. However, the audio of the prosecution’s grounds of objection never made it into the observation gallery. When Judge Pohl sustained the objection, Commander Ruiz replied, “I’m not sure why any time I mention CIA it is a sustained objection.” When the court became aware of the audio feed problem, Commander Ruiz asked the Judge to investigate the issue. After a few tense minutes, which included Commander Ruiz stating that he “would not give in to the prosecution’s threats,” Judge Pohl called a recess for a private 505h hearing, requiring all observers to leave the courtroom.
The hearings resumed after nearly an hour of private discussions among the defense, the prosecution, and Judge Pohl. Brigadier General Mark Martins explained to the court that the reason for the missing audio and the hour-long disruption in the hearings was because trial counselor Joanna Baltes forgot to hit her microphone button when she stated her objection. Many remained skeptical of the prosecution’s explanation. There was no mention on the finding of the 505h hearing which took place and Commander Ruiz never returned to the topic of the CIA’s presence on the island during his questioning. Adm. Woods testified under Commander Ruiz’s questioning that his role was not only commander of the detention facility but also commander of Guantanamo Bay’s intelligence division, J2.
Helping Attorneys and Clients by Seizing Their Documents
Finally, defense counselor James Harrington pressed Adm. Woods again on the issue of why no exception had been made in the protective order for historical media, information related to historical jihad, or government personnel that might have been involved with his client. Mr. Harrington was the only defense counselor to question Adm. Woods on his knowledge of listening devices found in Echo II, the room where defense attorneys meet with their clients in Guantanamo Bay. Adm. Woods stated that when he came on board as JTF Commander he inquired how they monitored for safety and security and was told that interviews were monitored via video. He denied having knowledge throughout his command of both the detention facility and the intelligence division, stating he believed that the smoke detectors in his prison were actually listening devices.
In the afternoon, Adm. Woods testified under the prosecution’s cross-examination that the purpose of the baseline review was to help preserve attorney-client privilege by properly marking all legal material so that in the future, when other searches occurred, guards would be able to distinguish legal mail and not read it. At this point the proceedings were interrupted yet again when the audio was muffled by static. The disturbance turned out to be a jet engine going off on Adm. Woods’ end of the webcam feed. The prosecution strategically tied up their cross-examination by reminding the court that everyone in Guantanamo Bay Detention Center is alleged to be an “unprivileged enemy belligerent” by the United States in its Global War on Terror, and that there have been attacks on detention center personnel.
Adm. Woods then faced questioning from the defense for one last time. Defense counselor David Nevin emphasized the lack of time the defense had to review Adm. Woods’ protective order. Having received the order on 12/20/11 they had to, and did, send back comments by 12/22. Even though the defense requested an extension for review of the protective order, Woods’ issued it on the 12/27. Commander Ruiz attempted to rebut Adm. Woods’ assertion that the comments of the defense counsel on the protective order were taken into account. It was made clear that the defense had requested a review team independent from both the Convening Authority and JTF; however, this did not occur and Adm. Woods, acting then as the JTF Commander, remained the final arbiter of all privilege disputes. Defense counselor James Connell attempted to question the purpose of the baseline review and Adm. Woods’ incorporation of defense counselors’ suggestions, but when he tried to send a document to Adm. Woods online the IT system was again dysfunctional, highlighting the week’s theme of technical difficulties. Judge Pohl stated that again the webcam, or VTC, was being used for convenience but if this continued the proceeding would be conducted in a way where lawyers can hand the witness the paper document referred to during questioning. After, the situation was sorted out, Adm. Woods testified that he could not recall the changes that he made after he received the defense’s requests.
“I Knew I Was Going To Be Here One Day.”
Finally the day turned to the testimony of Captain Thomas J. Welsh, the former legal advisor to Adm. Woods. A lawyer for almost 20 years, Capt. Welsh first came to JTF as the Staff Judge Advocate in May 2011, three months before Adm. Woods. Capt. Welsh had a light background in criminal law but, like both Adm. MacDonald and Adm. Woods, Capt. Welsh had no capital case experience. When he arrived, discussion over the baseline review had been going on for about four and a half years. Capt. Welsh had been aware that Khalid Sheikh Mohammed (KSM) had counsel when the baseline review took place but Capt. Welsh still neglected to inform KSM’s counsel that JTF would be searching their client’s legal mail. He stated that “we knew it was going to be a concern” and added, “I knew I was going to be here one day.” Capt. Welsh and his team had based the protective order on the habeas model and advised Adm. Woods to sign it because “in the legal world precedent is good… well, it could be bad.” However, while creating the protective order’s language, Capt. Welsh did not take into account the potential need for the defense to use historical perspectives, jihadist histories or the detainees’ history with government agents. His intention was not to limit the defenses’ ability to defend their clients zealously. In fact, in Capt. Welsh’s eyes the Woods’ protective order was meant to expand the limited Al-Nashiri protective order. (By way of background, Abd al-Rahim al-Nashiri is accused of masterminding the bombing of the USS Cole and other attacks. The court-ordered protective order in the Al-Nashiri case prevented only attorney communication from being seized by the privilege review team, but in contrast Adm. Woods’ protective order prevented any documents bearing the lawyers’ signature and other case material from being seized.)
When leaving the court room at the end of the day, it was hard not to hear your second grade teacher in your ear saying “It’s a privilege, not a right. I can take it away any time I feel it appropriate.”
Ryan Gallagher, a rising third-year student at Seton Hall Law School, is a Fellow for the law school’s Center for Policy & Research. Seton Hall Law has been granted NGO observer status at the military tribunals in Guantánamo.
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