Below are observations of the NIMJ volunteer observer at the proceedings in United States v. Khalid Shaikh Mohammad et al. on Wednesday, February 13, 2013. The transcripts from this week’s hearings are available on the commissions website (here).

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Today’s first witness was a Navy judge advocate, a lieutenant who had been assigned to the SJA to JTF GTMO in 2011 and was responsible for handling HVD issues for a time after yesterday’s witness had been relieved from that position (who testified that he was fired shortly after expressing disagreement with the SJA’s policy of reviewing privileged attorney-client communications). The defense called him in support of defense motions 8 and 18, and the opposition to government motion 18, all of which generally deal with privileged mail communications.

The witness testified that his duties included screening HVDs’ legal mail, as well as documents that defense attorneys intended to bring in to legal visits, to ensure that those materials complied with an order by RADM Woods (commander of JTF GTMO). He further stated that items other than those authored by the attorney of client were not considered “legal mail” under the order and that such other items must be routed through the intelligence function of JTF GTMO, which would screen them for content and, if deemed not to contain information contraband, submit them for delivery. The witness acknowledged that this process might take several months; however, it was the only way under the order that any mail deemed “non-legal” could be allowed into the detention facility. He testified that he did not review for content any materials that defense counsel represented to him that they had personally authored, and that it was not his practice to send mail deemed “legal” under the order to the intelligence function for content screening. He acknowledged that he had refused to allow them to bring such materials as RADM Woods’s order covering privileged mail communications, amicus briefs filed in other commissions cases, published legal opinions and filed pleadings in other cases, a published book discussing the detainee to whom the book was sought to be brought, and the Navy JAG Instruction covering the ethical ramifications of seizing attorney-client communications.

Next, the defense called an Army colonel serving as commander of the Joint Detention Group in support of AE 133, the emergency defense motion alleging audio monitoring of privileged defense communications in several locations, including meeting rooms at the detention facility.

The witness testified that the meeting rooms at the E2 detention facility are under his control, but that the electronics and technical systems therein are owned by the JTF intelligence function. Other agencies, including the FBI, have access to the facilities through the proper channels, which should include getting permission from his command. He has never personally seen anyone monitoring the audio in the E2 meeting rooms, and the only such occasion he is aware of is the proffer session that the SJA previously testified about, where he observed a law enforcement agent listening in (the SJA, who testified about this yesterday, told the witness about it). The witness was unaware that the meeting rooms were equipped for audio monitoring until the defense filed its motion. When he assumed command of the JDG, he did a turnover operation and inspected the facilities, but while he noticed the video cameras, he did not see the microphone, which he agreed looked just like a smoke detector. He testified that he also asked the E2 OIC whether there were audio monitoring capabilities and was told that there were not.

The witness testified that in October 2012, the intelligence function performed certain repairs and upgrades to the audio and video systems at E2. The witness was not aware that the audio work was being done because he did not know it was there. When defense asked why they would repair a system if it wasn’t used, he speculated that if it was broken on their watch, they probably felt a duty to return it to its original condition. When asked how they would even have known to repair it if it wasn’t used, he said that the wires had been damaged. Despite the repairs, the witness testified, the audio still wasn’t working in meeting rooms 1-4. It was working in rooms 5-8. When asked if it would be fixed in rooms 1-4, he replied that it would not, because there was no need, since the audio was never used.

Multiple defense counsel asked whether he was aware that since the repairs of October 2012, all meetings with their clients had been scheduled in rooms 5-8 (the ones with working audio). He was not aware, so we will look out for possible evidence on that point. He did confirm that rooms 1-4 are otherwise in working order, except for the audio.

Perhaps foreshadowing a prospective remedy, the judge asked the witness whether the listening devices – which have now been disabled since the defense motion – can be removed entirely. The witness confirmed that it is possible.

Next, the defense called the Director of the ABA Death Penalty Representation Project in support of 8, 18, and 32. They requested her testimony, over prosecution objection, to offer the judge insight into the deliberations behind the 2003 ABA guidelines on death penalty representation. The value of her testimony was not clear to me, as the defense asked a brief handful of questions that were not, in my view, illuminating of the issues for which she had been called, before turning her over to the government. The purpose of the government’s lengthy and laborious cross was even less clear to me. In the end, I suspect that the judge will read the ABA guidelines himself and give them the weight he deems appropriate, irrespective of their “legislative history.”

At day’s end, three defense counsel returned with a dramatic announcement: their clients’s legal bins were reportedly ransacked while they were in court yesterday, with several clearly marked attorney-client materials now missing. The government is looking into these allegations this evening and will report back in the morning.

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