Guantanamo Bay, Cuba – The second day of proceedings here in the war crimes tribunal for Abd Al-Rahim Husayn al-Nashiri, the alleged mastermind behind the USS Cole bombing, concerned two major issues: the extent to which protected attorney-client privileged information sent to Guantanamo detainees can be viewed by the government, and the ability of the defense to challenge the prosecutions’ redacting of classified information before disclosure to the defense.
The legal mail issue began Tuesday with the testimony of Rear Adm. David B. Woods. Admiral Woods, the commander of Guantanamo, who testified about an order he issued on December 27 that established procedures by which a privilege review team (PRT), made up largely of government contractors from the intelligence, legal and law enforcement community, would “review” mail sent from defense counsel to detainees for “contraband.” Contraband, according to Joint Task Force-Guantanamo (JTF-GTMO), consists not only of physical contraband, such as staples and pins, but also a broad category known as informational contraband, which includes items such as news about world political events and the history of jihad.
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Marine Col. Jeffrey Colwell, the Pentagon’s chief defense counsel for military commissions, last week instructed commission lawyers to cease sending their clients’ legal mail because the government’s review of such mail violated the lawyers’ ethical obligations.
Rear Admiral Woods’ testimony started out on the wrong foot when he was ten minutes late, causing Judge Pohl to demand the prosecution have their witnesses ready, and to declare, “I don’t care what rank they are.”
Upon arrival, Woods’ language and demeanor showed that he was very unhappy at having to appear in front of the commission. As his testimony progressed, it also became clear that he had little knowledge about the very order he had issued concerning the review of legal mail. Woods could not answer questions of who the privilege team members are, stating, “They do not work for me,” or even who administered their government contract. He stated at one point that the government contract may be administered by “USDI” – but when pressed upon what USDI was, he claimed it was the US Defense Intelligence, when USDI is actually an acronym for the Undersecretary of Defense Intelligence.
Navy Cmdr. Andrea Lockhart, a member of the prosecution team, also had trouble answering this line of questioning. Chief Military Commission Judge James Pohl was blunt, asking Commander Lockhart “who does the PRT work for?” She was unable to answer the question, stating that the PRT works under both the government and under Judge Pohl, since Judge Pohl’s order is eventually what they will be implementing. Lockhart argued that since the PRT is subject to a nondisclosure agreement, and since Judge Pohl will be the final arbiter of the issue should problems arise, there will be no violation of attorney-client privilege.
Despite Commander Lockhart’s insistence that PRT members do not actually read the detainees’ mail sent to them by their attorneys, Navy Lt. Cmdr. Stephen Reyes, one of al-Nashiri’s attorneys, found cause to question that assertion, given that the PRT is made up of law enforcement personnel, former attorneys and translators. If PRT members are needed only to check that a document is stamped, he asked, then why would legally trained officials and translators be necessary?
Ultimately, Judge Pohl was unable to reach a decision and asked al-Nashiri’s defense team to submit a proposed order within seven days. The prosecution will then be able to submit their own proposed order, explaining exactly what “review” will be done by the PRT.
The other significant issue that came up during Wednesday’s hearing involved the classification of evidence. Under military commission rules, the government may submit summaries of evidence in place of classified evidence for national security reasons. The military judge reviews the substitutions to ensure that the summary is adequate and the withheld information does not hamper the defense’s ability to prepare its case. However, the military rules do not give the defense an opportunity to challenge whether those substitutions are appropriate, which the analogous rule in federal court does allow. The problem, according to the defense, is that the judge is currently performing such reviews without knowing the defense’s theory of the case – and without such knowledge, the judge is determining whether the evidence is adequate “in a complete factual vacuum.”
This underscores one of the biggest problems with the military commission: it has its own set of rules, which incorporate bits and pieces of both federal law and military law. While the parties cited to this analogous situation in federal law, Judge Pohl declared, “we’re not in federal court. Give me an example from this system.”
The parties were unable to do so.
Judge Pohl again attempted to appease both sides, granting the defense until April to present him with their theory of the case. Al-Nashiri’s defense team, who expect to receive 60,000 to 70,000 pages of discovery within the next few days, anticipate that three months will be grossly inadequate for the task.
As al-Nashiri’s civilian defense attorney Richard Kammen stated during a press conference following Wednesday’s hearing, the commission system is a “completely different animal.”
“Today was really about secrecy” Kammen said. It was about the system of military justice used in Guantanamo Bay that is “in many significant respects … completely different and completely outside the pale” of what US justice has been for the past 200 years.
“Just because you see people in suits and a judge doesn’t mean it’s a real trial,” he added.
KARI PANACCIONE Kari Panaccione is a law student at Seton Hall University School of Law, where she serves as a fellow to the Center for Policy & Research and the Transnational Justice Project. She has studied international criminal law and Islamic law in Egypt, interned with the Office of Public Counsel for Defence at the International Criminal Court and interns presently with New York County Defender Services.