UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT. [The Military Commission was called to order at 0941, MJ [COL POHL]: This Commission is called to order.

Transcription

1 0 0 [The Military Commission was called to order at 0, January 0.] MJ [COL POHL]: This Commission is called to order. All parties are again present who were present when the Commission recessed. The next motion we will do is finish up AE. Yesterday I asked the Trial Counsel to provide a copy of the habeas order that Admiral Woods referred to. Do you have a copy of that? ATC [CDR LOCKHART]: Yes, Your Honor. The court reporters, I believe, have marked it Appellate Exhibit. MJ [COL POHL]: May I see it please? Thank you. The context of this motion, it appears to the Commission that both sides are unhappy with the current state of affairs, but since the starting point appears to be Admiral Woods' order, I will permit the Trial Counsel to go first. ATC [CDR LOCKHART]: Yes, Your Honor. Thank you. And Your Honor, the government also provided an additional attachment, I believe it has been marked as Appellate Exhibit Foxtrot, a declaration by Commander Jennifer Strazza. Defense has been provided a copy. We ask that the Court also consider that in our motion.

2 0 0 MJ [COL POHL]: One moment, please. ATC [CDR LOCKHART]: I'm sorry, sir? MJ [COL POHL]: One moment please. ATC [CDR LOCKHART]: Yes, sir. MJ [COL POHL]: Defense, have you seen this document? DC [LCDR REYES]: Yes, Your Honor, we have. MJ [COL POHL]: Any objection to me considering it as part of the motion? DC [LCDR REYES]: No, Your Honor, no. No, Your Honor, no objection. MJ [COL POHL]: One moment, please. [There was a pause in the proceedings.] MJ [COL POHL]: Commander Lockhart, go ahead. ATC [CDR LOCKHART]: Thank you, Your Honor. Your Honor, after the November court hearing when we initially addressed this issue, Your Honor invited the government, if we so chose to, to present an alternative proposition or solution to the issue of legal mail being delivered to the detainee or the accused as also addressing the defense's concerns. To start, I would like to point out and invite the Court's attention that it appears that all parties agree that material going in and out of the camps can be screened for contraband. I want to focus that searching for weapons or

3 0 0 anything that can be made ---- MJ [COL POHL]: Just so we are clear ---- ATC [CDR LOCKHART]: Yes, sir. MJ [COL POHL]: ---- are you referring to physical contraband? ATC [CDR LOCKHART]: Physical contraband, correct. MJ [COL POHL]: There is no issue of physical contraband. ATC [CDR LOCKHART]: Yes, sir, I just wanted to make that clear. MJ [COL POHL]: Go ahead. ATC [CDR LOCKHART]: So in the government's proposal, the government has proposed taking the judicial order and working that into a system that, in essence, removed the responsibilities of having mail come in and out through JTF and put it into an independent team that would be walled off from the prosecution, the CA's office, the Command, that would be independent so that it could address the defense's concern about having the command review material that was privileged or potentially privileged. And if I may, in the government's proposed order, which was the order signed by Admiral Woods which is applicable to others, the privilege review team was

4 0 0 established so that they could receive mail from the defense. And as I know Your Honor is aware, there is three categories of mail that can be introduced. This is actually a larger provision than what was provided for in Your Honor's order. The government is trying to reasonably accommodate the concerns of the defense in getting mail to their client, so we actually went a step further, and the government has proposed three categories that regular mail is not needed, meaning they don't need to use the regular JTF-GTMO mail. So this is actually a step better in that regards for the defense. And the way that the PRT would actually work, again as an independent walled-off entity, the defense or the defense courier, and that is up to the discretion of the defense, would bring mail or could mail mail to that team. They'd present it. They are welcome to be present while the inspection occurs. The team inspects it for physical contraband, as we already discussed, and then also reviews it to ensure that it is properly marked; that it is marked as one of the three ---- MJ [COL POHL]: What does that mean? ATC [CDR LOCKHART]: It means, sir, that the defense has adhered to labeling each and every page as to what they

5 0 0 certify it is. If they believe that it is privileged communications, then they label it as such; if they believe that it falls into the category of other case-related material, then they label it as such. Their certification is what is telling the privilege team it is what it purports to be. Every page is labeled. The privilege team simply looks through it and makes sure that the pages are marked. They don't question is this really -- are you really communicating about what the content is? I think Admiral Woods was very clear about they are not doing a content-based review. With the privileged material, if the defense attorney certifies its privilege, they accept it on its face value. One exception to that is if in plain view it is obvious that it contains contraband. Some of the examples are if it is marked classified, you don't have to read the document to see that marking; in plain view they can tell that that is contraband. Another example that Admiral Woods gave is if it is a map of the detention facility, something that would be prohibited for an accused to have. And interesting enough, within the order, if for some reason the defense counsel believes that a piece of identified contraband is necessary, they have the ability to articulate that and they have the ability to articulate to the

6 0 0 privilege team initially, which again is walled off from the government, from the command; and if the defense still disagrees, they have the ability to articulate that to you if the order is adopted, Your Honor. MJ [COL POHL]: Who does the privilege team work for? ATC [CDR LOCKHART]: The privilege team is actually an independent body. They are contracted out, much like any other government contractor, much like the defense has contract employees. MJ [COL POHL]: But the defense contract employees work ultimately for defense counsel. Ultimately who does the privilege review team -- everybody works for somebody. ATC [CDR LOCKHART]: I'm sorry, sir? MJ [COL POHL]: I said everybody works for somebody. ATC [CDR LOCKHART]: Yes, sir. MJ [COL POHL]: My question is: Who does the privilege review team work for? Who would tell the privilege review team what to do and what not to do? ATC [CDR LOCKHART]: The order would dictate the terms of that so it would be Your Honor. MJ [COL POHL]: They work for me now? ATC [CDR LOCKHART]: They work for the order, sir. MJ [COL POHL]: The last -- my question is this, is who

7 0 0 are they accountable to to make sure that they are doing their job in accordance with the order? ATC [CDR LOCKHART]: I think there are several ways to look at that, if I may, sir? MJ [COL POHL]: I'm saying it is your proposal. ATC [CDR LOCKHART]: I understand, and that is what I would like to explain. Initially they are accountable to you. If an order is signed and an order is given, they are accountable to the terms of that order. They must comply with it. If defense counsel believes they have not complied with those orders, that matter would be brought in a motion to the judiciary. If the judiciary determines that the order was not followed, then that would be considered not complying with the terms of their employment. And ultimately the government employs them. That information then would be conferred to the government contracting agency that hired them. MJ [COL POHL]: How many members of this team are there? ATC [CDR LOCKHART]: I don't ---- MJ [COL POHL]: It sounds to me like it is an amorphous concept. ATC [CDR LOCKHART]: It is, sir. And it can be established as however many members of the team the order 0

8 0 0 dictates. MJ [COL POHL]: Let me ask you this: Why not just embed a team in with the defense? ATC [CDR LOCKHART]: Embedding a team with the defense is problematic, sir, for several reasons. The whole concept of the privilege team is it is walled off from all parties. There is not allegiance to the defense, there is not allegiance to the government. And when we are balancing the defense's need to communicate privately with the client and the governmental interest of ensuring contraband does not enter the camps, you have to have an independent body. If they work for the defense, they don't have that balance of security and a legitimate government interest. MJ [COL POHL]: But they would be bound by the attorney-client privilege, wouldn't they? ATC [CDR LOCKHART]: That is one of the balances, absolutely, sir. So ---- MJ [COL POHL]: They're bound by that if they are an independent agency, aren't they? ATC [CDR LOCKHART]: I'm sorry, sir? MJ [COL POHL]: Aren't they bound by that if they are an independent agency? ATC [CDR LOCKHART]: I think "bound" is an interesting

9 0 0 word. And, if I may, sir? MJ [COL POHL]: Go ahead. ATC [CDR LOCKHART]: Bound is true in several contexts. First of all, they are bound by a nondisclosure agreement. Now, that nondisclosure agreement is applicable to these employees and, if violated, they could lose their security clearances, they could have their employment terminated. So they are certainly bound by that. The second aspect of that is simply because material in a legitimate setting is given to a walled-off privilege team does not mean the privilege is waived. There is federal case law. I would invite Your Honor's attention to U.S. V Kassir, which Mr. Mattivi mentioned yesterday and is included in the defense's brief where measures are available. I would also invite Your Honor's attention to Bismullah v. Gates. And that cite is 0 F.d. And while a habeas case, the Court specifically said in Bismullah, by submitting matters to a privilege team it does not waive any attorney-client privilege. That is the whole concept of why it is walled off. The government, the prosecution, the Convening Authority has absolutely no reach into that entity. It appears to the government as though this is a very reasonable solution. Their privilege material is

10 0 0 protected; the government does not have access to it, the prosecution does not have access to it; the privilege is not waived; and the Joint Detention Group commander is able to balance the needs of national security, of actual physical security, which can be more than just physical contraband. MJ [COL POHL]: Let me ask you this: There has been this habeas order on this issue in place since 00, is that correct? ATC [CDR LOCKHART]: That's correct, sir. MJ [COL POHL]: Apparently, the habeas defense counsel are complying with this? ATC [CDR LOCKHART]: They are, sir. MJ [COL POHL]: This deals with the exact same subject matter? ATC [CDR LOCKHART]: It does, sir. MJ [COL POHL]: Why don't we just follow that? ATC [CDR LOCKHART]: It is very similar, and it is modeled after it. MJ [COL POHL]: What I'm saying is, if all the habeas defense counsel, the defense counsel here are raising ethical obligations -- excuse me, their concern that Admiral Woods' order infringes on their ethical order, the chief of OMC-D said the same thing, if you have in place a procedure that is

11 0 0 apparently acceptable to defense counsel addressing the same concerns, why are we reinventing the wheel with Admiral Woods' order? ATC [CDR LOCKHART]: We are actually not, sir. MJ [COL POHL]: Why don't we just simply take the habeas order, retype it, and put my signature block on it? ATC [CDR LOCKHART]: It is actually not practical because of the difference between a civil court and a criminal court. And the perfect example is a civil court does not have the uses of CIPA in Federal Court and obviously not 0 protection. There are protections in the habeas protective order that specifically addresses their shortcomings in not having CIPA applicable. So adopting it word for word would not translate because there are some parts of that order that are just not applicable to this proceeding. Second of all is when you actually break down the order, subject by subject -- and I know that Your Honor was able to read in the defense's motion their contentions on the differences, and I absolutely know that Lieutenant Commander Reyes is going to point that out for you, their order is subject to an Article III judge. That is a difference. So one of the contentions that I believe defense is going to make and has made in their motions is the whole

12 0 0 duty to disclose is a different issue under the habeas order. So there has to be a little bit of different modification simply because of the forum and also because of the nature of the case. And, again, I would invite Your Honor's attention, and I understand we just provided that to you this morning, at your request, Your Honor, if you look at the differences, they are not very large. The PRT is made up of individuals doing the same exact thing again, except for the CIPA and the classification review, which is not necessary in a Military Commission because we have M.C.R.E. 0. So, in essence, if you look through it, it will be very similar. MJ [COL POHL]: So are you telling me that if you took the habeas order, you would simply cross parts of it out, perhaps change a little bit of the language and get to where you want to get? ATC [CDR LOCKHART]: I believe so, Your Honor. And there are some nuances, but I believe so. And again ---- MJ [COL POHL]: What I'm saying is is that Admiral Woods' order you're saying is similar though not identical to the habeas order? ATC [CDR LOCKHART]: Yes, sir. MJ [COL POHL]: But you agree the habeas order will

13 0 0 accomplish the same goals as long as we modify it to meet -- perhaps it's an Article I court instead of an Article III court some of the 0 things, so why are we discussing this whole redrafted procedure then? ATC [CDR LOCKHART]: That is actually what the government believes they have done, Your Honor. The government started with the basis of the habeas protective order. The government modified it in the ways that they believed were necessary for the differences and that is what has been presented to the judiciary. MJ [COL POHL]: Okay. ATC [CDR LOCKHART]: The privilege review team works the same -- the only thing is -- understand this: You heard from Admiral Woods. Admiral Woods reached out to the defense, and I don't know if it was this specific defense team or the Chief Defense Counsel, and asked for his input and incorporated some of their changes, three distinct changes which makes it different than the habeas. At the request of defense, we expanded the categories of information that can be delivered in this fashion to the defense -- I'm sorry, to the accused. And these were benefits for the accused. MJ [COL POHL]: Go ahead.

14 0 0 ATC [CDR LOCKHART]: Yes, sir, Your Honor, thank you. MJ [COL POHL]: I can listen and read at the same time, so the fact I'm looking at a document, not at you, don't ---- ATC [CDR LOCKHART]: Yes, sir, thank you, sir. MJ [COL POHL]: ---- don't take that personally. Go ahead. ATC [CDR LOCKHART]: The defense is interested in protecting their attorney-client privileged material. The government is also interested in protecting their material. The government has no desire to read, to be involved with that material. It is essential for a fair trial for the accused. The government is proposing a reasonable solution that addresses the defense's concerns along with a legitimate government interest. And as we read Turner v. Safley, inspection that is reasonably related to a government objective includes institutional security. And as long as it is reasonably related, the joint detention facility has the ability to do that. Again, this is actually even better because it is implemented through a judicial order. And I do think a key point that needs to be emphasized: The legal mail is not being read. I would like to continue with how the privilege review team process works. As I mentioned, the defense team

15 0 0 will bring the material, it will be reviewed. If defense counsel wants to be present, if a defense representative wants to be present, it will be reviewed in their presence. If it is marked properly, it will then be stamped. It will then be readily identifiable to anybody who sees that document that it has already been cleared to be in the cell of the accused. This absolutely will stop any further need for review. It is marked, it is clear, it is evident. MJ [COL POHL]: So your procedure is that the defense courier, probably, as opposed to defense counsel themselves, will hand carry documents -- they are currently being hand carried, correct? ATC [CDR LOCKHART]: Yes, sir. MJ [COL POHL]: The PRT will then do their cursory review that you discussed, make sure the markings are there, there is no plain view violations which would be something marked classified or something like that, and then once that's done -- and that shouldn't take too long because all they are doing is flipping through pages, right? ATC [CDR LOCKHART]: Yes, sir. That is dependent upon how much material the defense brings. MJ [COL POHL]: I understand. Then they are done with it, they put it in an envelope, cleared, and then they give it

16 0 0 to the guard to deliver to the detainee? ATC [CDR LOCKHART]: Couple steps in between, just so we are all clear. It is sealed again. If the defense courier wants to be there, he is there. And my understanding is he signs across where it is sealed with tape, so when the accused receives the package he can tell it hasn't been opened. MJ [COL POHL]: Currently -- and I just read the affidavit from Commander Strazza, the current procedure is to deliver this mail for HVDs to her, and then the courier stands there and signs off when she approves it to go in to the detainee. ATC [CDR LOCKHART]: It is actually signed off in front of the privilege review team members. MJ [COL POHL]: Forget the privilege review team. I'm saying currently. ATC [CDR LOCKHART]: Yes, sir. MJ [COL POHL]: I'm just reading Strazza's affidavit or declaration. I'm not sure I'm reading correctly. Currently if they want to deliver to Mr. Nashiriiri -- , want to deliver mail to them, let's say it is one piece of paper signed by Mr. Kammen stamped attorney-client privilege, that goes to Strazza? ATC [CDR LOCKHART]: Commander Strazza, correct, sir.

17 0 0 MJ [COL POHL]: She looks at it, marked fine. Courier is standing right there? ATC [CDR LOCKHART]: Yes, sir. MJ [COL POHL]: Then she says okay, puts it in an envelope? ATC [CDR LOCKHART]: Yes, sir. MJ [COL POHL]: Seals the envelope? ATC [CDR LOCKHART]: Yes, sir. MJ [COL POHL]: Signs it? ATC [CDR LOCKHART]: The courier signs it. MJ [COL POHL]: The courier signs it. Then it goes through the delivery channel, for want of a better term, to the detainee himself? ATC [CDR LOCKHART]: Yes, sir. MJ [COL POHL]: So your procedure is exactly the same, except instead of Commander Strazza doing the review, it is the PRT? ATC [CDR LOCKHART]: That is correct, sir. MJ [COL POHL]: Got it. ATC [CDR LOCKHART]: The government's intent is to take the November order, incorporate the permissible terms of that, even expand it for the benefit of the accused. I would like to talk for a moment about privilege 0

18 0 0 review teams, their histories, and how they worked in the past and how they have been approved. It works. It has been used in the habeas proceeding, as you are aware from the order. And as Admiral Woods testified to, he has not received any complaints as to that process. It works. The material is not read, and there is a reasonable expectation of privacy that preserves the attorney-client privilege. The privilege review team is walled off from the prosecution, from the Convening Authority's office, from the command. There are nondisclosure agreements. And I would like to clarify something from yesterday, which I'm certain Your Honor would like me to. I did not articulate my thoughts very well, and Your Honor is absolutely correct in the fact that civil contempt cannot be put on civilian contractors. What I was trying to articulate is if Your Honor issues an order and that order is violated, it is still a violation of an order; and the fact that that order is violated can be used to terminate employment, can be used to take away security clearances. So even though there is no contempt which is comparable to a civilian court, it still has effects on somebody who violates the orders. An important note, too, to address in the

19 0 0 difference between the written order as applied to Mr. al Nashiri. Because we have a Military Judge, you as the Military Judge are the final arbitrator. This really does take it out of the hands of JTF-GTMO. If a walled-off privilege team -- if there is a dispute, the Commission is the final arbitrator. And, again, Your Honor, I would like to invite your attention to two cases I cited previously, one is U.S. v. Kassir. In that the Federal Courts upheld the idea and the concept that certain classes of material that attorneys wanted to provide to their client had to be read by members of the government to provide that only the appropriate material was going through. And the Court upheld that. The Court also stated in that opinion that the idea -- or that it was reasonably related to a concern on institutional security. They had a walled-off agent. They didn't call it a "privilege team," but the concept is the same. I would like to for a moment talk about -- I apologize, sir. I would like to talk about U.S. v. Bismullah as well. And, again, even though that is a habeas team, it upheld the use of this privilege team, and it upheld the fact that just because materials were submitted, there was a reasonable expectation of privacy and no privilege was waived.

20 0 0 May I have one moment, Your Honor? MJ [COL POHL]: Sure. ATC [CDR LOCKHART]: Your Honor, one last area I would like to discuss is the Chief Defense Counsel's written guidance that was provided to the Court -- sorry, to the Commission by the defense counsel. I do think it is extremely important to note that in his opinion he stated it specifically did not apply to the counsel in this case and that it would not apply because we had a Military Judge that was presiding over. If Your Honor chooses to either adopt the order or draft an order or implement an order adopting the practices and procedures that the government is proposing, counsel in this case would be under that order. And it is the government's position that that moots any opinion by the Chief Defense Counsel in that area. The government strongly believes, as we were invited by this Commission to submit a proposal that addresses both the defense counsel's needs and the balancing of physical security and force protection, that the government's proposal addresses that in a manner that is reasonable and that is just. Thank you, Your Honor. MJ [COL POHL]: Defense?

21 0 0 DC [LCDR REYES]: Your Honor, I will attempt to make this brief and try to invoke a little bit of Occam's razor and just cut to the main point here. I think the starting point here should be Woods' memorandum. The defense provided you in its motion something that looks like what you had ordered in November but actually clarifies it a bit so there isn't any problems. MJ [COL POHL]: Commander Reyes, let me ask you this, because again we are running into a situation where the government is saying they are giving you more protection than my order did, and you are arguing you want what they say is less protection of my order. So I always get confused when counsel take that position. But that is okay. DC [LCDR REYES]: They are absolutely not giving us ---- MJ [COL POHL]: I know, I know, I got it. Here is my question to you ---- DC [LCDR REYES]: Sure. MJ [COL POHL]: Forget how the order, either Admiral Woods' order or the habeas order, whatever the order was, the actual words, okay? Here is what I just heard them say, is that -- well, rephrase this. In our last discussion on this issue we said-- I said that if properly marked, they would be inspected for

22 0 0 markings only, not read, and accordingly delivered. And that's -- that was the procedure that you apparently adopted and you are adopting today? DC [LCDR REYES]: Yes, Your Honor. MJ [COL POHL]: Now, what I just heard them say -- again, I think the order perhaps is not as clear as it should be. I'm talking about Admiral Woods' order. What they are proposing is, sounds to me, is the almost identical thing except instead of having the guard force or JTF member read it, review it, it would be reviewed by this PRT in the presence of your courier. DC [LCDR REYES]: Right. MJ [COL POHL]: Who then could be the safeguard to make sure they are not reading it. Now, you did not object -- or you agreed that -- earlier that if it is marked, it could be read -- excuse me, could be reviewed for the markings by a member of the JTF force. No mention about having a defense courier there, no mention about any other type of safeguards. DC [LCDR REYES]: Correct. MJ [COL POHL]: Now, what they have done -- well, again, it is not clear in the memo; that is what I'm saying is it needs to be cleared up. Now, the proposal is simply marked, reviewed in the presence of a defense courier to ensure

23 0 0 compliance, it is not being read, and so tell me which part of that you find objectionable. DC [LCDR REYES]: It is the review part, Your Honor. They can specifically state -- what this is is cursory review redux, part. I think in terms of the actual order ---- MJ [COL POHL]: Don't think in terms of the order. Here is the way I want you to start, a paradigm. Your courier or a defense counsel, him or herself ---- DC [LCDR REYES]: Right. MJ [COL POHL]: ---- hand-carries the document to the review team, stands there as the review team reviews it for proper markings and not in-plain-view, non-privileged material or inappropriate material. And that would be things that jump out like classification markings, and they talked about the diagrams. They are not reading it. And you are sitting there looking at them watching them do that, you or a member of your team is watching them do that. And they start reading it. Then you have got a witness to say, "Hey, they are not complying with the rules." That gives you more protection than you did on the prior procedure, doesn't it? DC [LCDR REYES]: Yes, but you are instituting a procedure that allows them, part of their responsibility -- this is why we have to go to the order. What they are doing

24 0 0 first, plain view, is in and of itself a violation. Look at the case law we cited to you back in November and the case law we cited to you for this motion. Conducting just a plain view of attorney-client information is still a violation of the attorney-client privilege. The only thing you can do in the Bureau of Prisons and was recognized by the Supreme Court in the Wolff case was just to look for markings to see if it comes from attorneys or, in certain respects, comes from the Court. MJ [COL POHL]: If the review individual -- let's not talk about the review team -- reviewing individual gets a piece of paper from the defense that is signed by defense counsel, clearly privileged information, and on top of it it says Top Secret, you are telling me under that case you just cited, well, I'm not allowed to look at that? DC [LCDR REYES]: The Top Secret information? MJ [COL POHL]: No. What I'm saying is -- I thought what you just told me was the law is this, that they only can review for the markings. DC [LCDR REYES]: Sure. MJ [COL POHL]: If the markings are correct, the fact there is a Top Secret label on it, they can't look at that. You are telling me that's what the rule is?

25 0 0 DC [LCDR REYES]: That is what the rule is, Your Honor. MJ [COL POHL]: Okay. So an individual, a prison individual, a guard, has a piece of paper marked Top Secret, and they can't avoid seeing it. Say it is in red ---- DC [LCDR REYES]: Yes. MJ [COL POHL]: ---- because it is marked privileged, they just hand it to the prisoner? DC [LCDR REYES]: Don't forget this ---- MJ [COL POHL]: I'm just saying, is that what you're telling me you believe the state of the law is? DC [LCDR REYES]: Yes, Your Honor. We have to understand here the documents are coming from defense counsel, defense counsel who have an independent obligation to ensure that the only information that the accused can receive receives that information. We have independent observations only to ensure classified information isn't given to someone who should not get it. So that's why legal mail -- and there is also an obligation to ensure that the attorney-client privilege is protected. So that is why the rule requires that, you know, if the attorney labels it as legal mail, the only thing the Bureau of Prisons can do or the guard force can do is look for physical contraband.

26 0 0 MJ [COL POHL]: Okay. Let me ask you this: Under the habeas order, are privilege review teams used? DC [LCDR REYES]: Excuse me, Your Honor? MJ [COL POHL]: Are privilege review teams used in the habeas order? Since I just got it, I haven't had a chance to read it. DC [LCDR REYES]: They are. Here is the distinction Commander Lockhart referenced and I will talk about it here, is the fundamental distinction here, the reason why privilege review teams are used in the habeas case is because they do what is called a classification determination. What that means is that everything that comes from the detainee in the habeas context is presumed to be Top Secret ---- MJ [COL POHL]: I understand what classification determination is. My question to you would be: Are you telling me the classification determination procedure trumps the attorney-client privilege in habeas cases? DC [LCDR REYES]: In this particular case ---- MJ [COL POHL]: I'm just asking you that because this is all being turned -- your whole argument is based on violation of attorney-client privilege. What I'm trying to understand is you are telling me the habeas cases, based on the classification determination, they are allowed to read for

27 0 0 content. DC [LCDR REYES]: True. If you give ---- MJ [COL POHL]: Okay. Doesn't that violate the attorney-client privilege? DC [LCDR REYES]: This is an affirmative act by defense counsel. Defense counsel gives it to the privilege review team, they do the review. So defense counsel has a way of saying this is the information we want you ---- MJ [COL POHL]: But how does that comport with your idea that any type of review violates attorney-client privilege if it is marked privileged material? DC [LCDR REYES]: If we go back to the enforcement aspect of it ---- MJ [COL POHL]: Don't go back to the enforcement aspect of it, answer my question. The concern I had before which I have now, which is -- which I think I share with you is disclosure of attorney-client privileged information, okay? DC [LCDR REYES]: Right. MJ [COL POHL]: The habeas counsel have the same ethical responsibilities that everybody else does. They apparently are able to comply with their ethical responsibility by having the privilege review team read much more extensively than what you're asking for here. 00

28 0 0 DC [LCDR REYES]: Here is the fundamental distinction: Incoming mail is only reviewed for physical contraband. The terms of the protective order, Your Honor -- and I can show you the paragraph I'm talking about, specifically the mail procedure is set out in paragraph a, b, and c where all they are looking for is legal mail from counsel for delivery to the detainee, privilege team shall open the envelope or mailer to search contents for prohibited physical contraband, that is including staples, paper clips. So incoming mail ---- MJ [COL POHL]: They already reviewed it for the classification issue? DC [LCDR REYES]: No, Your Honor, they do not. The only time they review it for classification information is after there is a meeting with a detainee. They have their notes, whatever comes into existence, those notes are then given, if they want to, if defense counsel wants to, they can give those notes to the privilege review team so they can conduct a classification determination of those notes. MJ [COL POHL]: Okay. Just so I'm clear here, since I just got the order and have not read it, under the habeas procedure, are you telling me the privilege review team does not review incoming mail? DC [LCDR REYES]: Under the terms of the habeas 0

29 0 0 protective order under paragraph a, b, and c the only thing they look for is physical contraband, Your Honor. MJ [COL POHL]: You are saying there is no review -- there is no plain view review or anything like that? DC [LCDR REYES]: No plain view review, no review for information contraband, no six categories of information. The only type -- the only disclosure requirements for privilege review team members is when they are conducting classification determination, when defense counsel after the meeting with the detainee decides that they want to give the notes to the PRT. If they find something in there, then they can disclose that information, but not for incoming legal mail. The only things they can do for incoming legal mail, which is consistent with Supreme Court law and Bureau of Prisons, as well as how things were done before October, is look for physical contraband. Now, what defense counsel has offered Your Honor for consideration is something that does mirror what you had proposed in November of this year. See, our position is that Woods' memorandum is identical to the cursory review that was occurring prior to Your Honor's order, absolutely identical. The only thing that has changed between a cursory review occurring back then and what is occurring now -- I think this is important -- is the names of the characters and the people 0

30 0 0 who are playing the role. In October the people that were doing this review were JTF personnel who purportedly signed a nondisclosure agreement. And what were they doing? They were looking for informational contraband that either fell under one of the six categories and whether or not it was quote/unquote legal mail. Here you have a privilege review team doing the exact same thing, looking to see if the information falls under one of the six categories, if it is appropriately marked -- which is it presumably is properly marked attorney-client privilege case-related, et cetera. There is no distinction between what was occurring in October and what is supposed to occur now. Fundamentally there is no difference, just the parties changed and the names changed. Now, there is much contention they are not reading the mail; all they are doing is looking for stamps. Why do we need to employ a law enforcement agent, an intelligence person and a translator, a translator nonetheless, if all they are doing is looking for stamps, if all they are doing is looking for markings? They have to employ those personnel in order to conduct this cursory review, however you want to call it, plain view of the mail to determine that it falls under one of the six categories of information. 0

31 0 0 Your Honor, I think what has been recognized by the Commission is the fact that there are a number of questions in regards to how all of this should be implemented, what authority does this Commission have on contractual employees; also, how far does the contempt authority even extend. The Government submits that it doesn't extend to those employees, so the one remedy is that they can be fired, they can lose their position. But at that time the bell has already been unrung; if they violated the protective order, the information is already out. The information is owned by Mr. Nashiri, not by the privilege review team or by a contract. What we have provided, Your Honor, is essentially an order that does comply with case law, does not tend to violate the attorney-client privilege, and ultimately doesn't interject this bureaucratic, independent agency that are manned and staffed by law enforcement agents, intelligence agents, et cetera. At the end of the day it is about trust, Your Honor, I believe. We as officers of the court which you, Your Honor, have authority over. We as independent officers of the court, officers in the military with respect to civilians have an obligation to be sure the accused is adequately represented 0

32 0 0 and at the same time safeguard any type of information. We propose if the evidence or the document is related to the case, if you take a look at the mail definition in the habeas protective order, it is pretty expansive. The legal mail definition in courts pretty expansive, if it is related to the Court, we will mark it; if it is related to the case, we will have that looked at for physical contraband and to look to see if it is appropriately marked. We will not, according to this, include anything that deals with JTF force protection matters. MJ [COL POHL]: Do you agree -- rephrase that. Can you live with the definitions in Admiral Woods' memo, the various categories of what is privileged and what is other case material? DC [LCDR REYES]: No, Your Honor. MJ [COL POHL]: Is there anything -- which part do you take issue with? DC [LCDR REYES]: I take issue with the part of separating into other protected, other case-related information. And we understand that essentially the other case-related information really is the key here, as to why we actually need that third class of information. We think -- and here's the thing, here is the real 0

33 0 0 distinction here. Legal mail as defined by the law is anything that is related to the representation and also documents that come from the Court. In the habeas protective order, they only did two classes of information, legal mail and other. So if they get discovery, it is legal mail. If they get court documents, legal mail. MJ [COL POHL]: At the end of the day if you had to, assuming they were treated the same, label some stuff privileged and other stuff case-related material, would it make any difference, as long as it fell within one of the two categories under Admiral Woods' definition? DC [LCDR REYES]: It does in the sense that legal mail is given a very protected class, so it includes not only attorney-client privileged information ---- MJ [COL POHL]: I understand that. What I'm simply saying is that they -- if they are treated the same, does it make any difference that they require different labels? DC [LCDR REYES]: If they are treated the same, it is just essentially quite burdensome, Your Honor, for no apparent reason. And ---- MJ [COL POHL]: You just need a different stamp. You've got to stamp them all anyway. You agree with that? DC [LCDR REYES]: Sure, there are

34 0 0 MJ [COL POHL]: One may say "privilege," one you may have to spend another -- as we discussed earlier, I'm sure there is money to buy another stamp. DC [LCDR REYES]: Stamp, correct, we could probably find a stamp. However, Your Honor, this goes back to really what are they doing when they receive the mail. MJ [COL POHL]: I got that. But I'm saying, if those definitions are clear enough to you as to what they cover, that is my question. Okay. So I got you. Okay. Anything further? DC [LCDR REYES]: Your Honor, I think really what this is about, one major point, excuse me, the notion of protecting legitimate government interest. We understand that. We don't begrudge the government of that position. However, if you take a look at their own Admiral Woods' order, it seems to be a threadbare attempt, a feckless way of -- of actually protecting what they think is a legitimate national interest. For instance, they want to ensure that national security information or contraband information doesn't go in, but we are not reading the mail. We want to ensure that these six categories of information are not going in, but we are not reading the mail. MJ [COL POHL]: Okay. In your original brief, I know 0

35 0 0 that predated Admiral Woods' order, I'm looking at your 0 December submission ---- DC [LCDR REYES]: Yes, Your Honor. MJ [COL POHL]: ---- specifically page where you kind of outline at the top what you believe would be an acceptable procedure -- I'm sorry, what you thought I said ---- DC [LCDR REYES]: On page, Your Honor? MJ [COL POHL]: Yes, I'm sorry. That's what, okay ---- DC [LCDR REYES]: Is that the regional defense motion ---- MJ [COL POHL]: No, I'm on the one of ---- DC [LCDR REYES]: ---- reply? MJ [COL POHL]: December, the one after the Woods memo. It would be AE. I don't have the subcategory on it. It would be Alpha. DC [LCDR REYES]: Sorry, Your Honor, I don't have -- I have January, the one I filed with the affidavit, our reply. And a December --- MJ [COL POHL]: I'm sorry. I'm sorry. I'm reading the government -- it was the government pleading, not yours. DC [LCDR REYES]: Okay. MJ [COL POHL]: Let me -- let me -- let me ask you this: Do you have a copy of that? 0

36 0 0 DC [LCDR REYES]: The government's? MJ [COL POHL]: Government's response is 0 December, I'm sorry. DC [LCDR REYES]: One second, Your Honor. Okay. Your Honor, I'm tracking. MJ [COL POHL]: Now, in the government response they summarize what they think I said, what I probably did say, on page. DC [LCDR REYES]: Okay. MJ [COL POHL]: Now, would it be fair to say that as a starting point, again, we would have to flesh it out, that meets your requirements? I just want to make sure we are starting at the same point because I thought last time we basically -- go ahead. DC [LCDR REYES]: We were happy with the last time. It was just we needed more clarification. MJ [COL POHL]: I understand, I think, the attachment issue and the other legal mail issue, okay. But I really want to kind of direct your attention to paragraph Charlie. DC [LCDR REYES]: Okay. MJ [COL POHL]: That really does require some type of review. DC [LCDR REYES]: Your Honor, we took that for you to 0

37 0 0 mean if we want Time magazine, the actual Time magazine itself, not just excerpts which may be relevant to the case, but the actual magazine itself, and you are stamping that attorney-client privilege, that is what we understand you meant. MJ [COL POHL]: Your understanding is what I meant. DC [LCDR REYES]: Yes, Your Honor. MJ [COL POHL]: Okay. Thank you. Anything further? DC [LCDR REYES]: No, Your Honor, that is it. MJ [COL POHL]: Commander Lockhart, I've got a question for you about the habeas order, so please have a copy with you. Please turn to page of Appellate Exhibit. ATC [CDR LOCKHART]: Yes, sir. MJ [COL POHL]: Now, again, I just read it, but it would appear to me that in the habeas order there is no review for any content in plain view, it is simply a physical contraband review. ATC [CDR LOCKHART]: I think that you are correct, Your Honor, that in the order it doesn't use those words. I don't know in reality if that's the way that it occurs. And if I may, sir ---- MJ [COL POHL]: Well, I only can deal with the paper I have in front of me. I'm with you on that, but I'm saying 0

38 0 0 this says right here exactly what Commander Reyes says it says. There is --- ATC [CDR LOCKHART]: It doesn't preclude, and I'm with you, sir. It says, and we can just read it, "Upon receiving legal mail from counsel for delivery to the detainee the privilege team shall open the envelope or mailer to search contents for prohibited physical contraband." MJ [COL POHL]: Period. ATC [CDR LOCKHART]: Period. That does not preclude that they do not also have to ensure that the material is marked. And my belief is -- again, it doesn't state it in here, but I don't think it is precluded for, if you have a member of the privilege review team in habeas and they were looking for contraband and they saw a document that is marked Top Secret, that document is not going to continue on in the process. And very specifically, it allows for the fact that if rules are not complied with, they can seize the document. It is not stated in the same way that Admiral Woods' order is, but ---- MJ [COL POHL]: Let me ask you this: Can you -- would paragraph of the habeas order meet your -- the problem I'm running into is that ---- ATC [CDR LOCKHART]: I'm sorry, sir?

39 0 0 MJ [COL POHL]: The problem I'm running into here is I have an order that has been in place since 00 that apparently has not caused consternation. I don't know, I'm not in Federal Court, but it doesn't appear to -- with this procedure sent out in plain English. Now, you may read between the lines other things being done, I don't know. But I'm assuming when you have a federal judge who sends something out, if I send something out like this, I would assume that the people doing the review comply with the terms of the order. ATC [CDR LOCKHART]: I believe they do, Your Honor. MJ [COL POHL]: And this order appears to be consistent with what I said on November. So why are we -- why -- the trouble -- it appears to me the long pole in this tent is the so-called plain view doctrine that you are espousing. I'm just saying I understand what you are saying. If a piece of paper comes in marked Top Secret, and the people checking for markings sees it, sees something like that, I don't expect them to say, okay, that is okay, despite what Commander Reyes says. I can't fathom that that would automatically go to the detainee if it is marked that way without at least it being sent to somebody like the judge to say -- or it goes back to defense counsel. I understand what he said, but it strikes to

40 0 0 me that -- if notice on that type of thing. But if that's marked, I suspect won't happen it won't happen, it would be a very rare circumstance. So if I draft an order the same as in the habeas order ---- ATC [CDR LOCKHART]: I do ---- MJ [COL POHL]: My point is one thing that you've talked about is that we have one set of rules for all the other Commission cases because there is no judge and you want the same set of rules to apply to this case because you do have a judge. And what I'm saying is why don't we have the same set of rules to apply to all detainees whether they are habeas or Commission detainees? ATC [CDR LOCKHART]: I think there are several reasons. MJ [COL POHL]: On the mail issue only. I don't need to talk about the ---- ATC [CDR LOCKHART]: Classification. MJ [COL POHL]: ---- classification. ATC [CDR LOCKHART]: If I can back up for one moment. I believe, and if I'm misstating this, I'm certain the defense will correct me, but I believe when habeas material goes through, it is stamped as approved by habeas. That in itself would lead you to believe that the page is looked at, not

41 0 0 reviewed, not read, somebody has to physically stamp it as approved. That is how the guard force knows that that material is allowed to be in the detainee's cell. That is my understanding. So I want to make sure that even though the order doesn't explicitly in the section ---- MJ [COL POHL]: No, I got you. But what I'm saying is mail comes in as we discussed earlier labeled by the defense counsel. We talked about whether they need two labels, one label, two stamps, one stamp. It really makes no difference, because at the end of the day assume they are treated the same. They go to somebody, you say privilege review team -- currently it's Commander Strazza, and they look at it to see if it is appropriately stamped, appropriately marked by defense counsel, then they put something on it to say okay. ATC [CDR LOCKHART]: Yes, sir. MJ [COL POHL]: We buy a third stamp. ATC [CDR LOCKHART]: Yes, sir. MJ [COL POHL]: They say okay on each page. ATC [CDR LOCKHART]: Yes, sir. MJ [COL POHL]: Now we are done. Now it goes through the delivery channels or return to sender, one of the two. ATC [CDR LOCKHART]: Yes, sir. But the return to sender

42 0 0 is an important part. I didn't write the habeas order. Obviously the parties that wrote it were involved in the litigation, had a judge to go to for clarification if they didn't understand. I think it is incredibly important when we are balancing the needs of the accused for a fair trial and the needs to protect for legitimate government interest, which is security and national security, that the plain view -- the document is out there and it is so valid on its face, without reading it, without looking at it in detail, that it cannot get delivered. And without having that in a written order, how is the privilege review team going to know that when they see that Top Secret document come through that they can withhold it? Because if it is not in the order, they have to comply with the order. MJ [COL POHL]: Perhaps you can explain to me then how JTF-GTMO has been able to live with this order for the last three years? ATC [CDR LOCKHART]: I'm sorry, sir? MJ [COL POHL]: You are saying the habeas order appears to be unclear, but apparently -- and I have not been involved in the habeas litigation -- they lived with it for the last three years. Defense counsel lived with it, the government

43 0 0 lived with it, the guard force lived with it. You talk about this balance, why then start with Admiral Woods' order? Why don't we start with the habeas order? ATC [CDR LOCKHART]: Your Honor, I did not believe we would get into rehashing old issues, but that was the genesis for the baseline review is that it wasn't working. And there was material that was getting in, like Inspire magazine that should not have been getting in. Admiral Woods ---- MJ [COL POHL]: So you are telling me the government has gone back to the judge in the habeas order to get it clarified? ATC [CDR LOCKHART]: I'm not aware what has occurred in the habeas case, sir. MJ [COL POHL]: See, what I don't understand here, Commander, I may just be slow, is that on the one hand you say we have all this balancing, and I got that. But I also have the balancing being done every day in the habeas cases with a certain result that doesn't require the level of intrusion that you are proposing. ATC [CDR LOCKHART]: And actually the government takes issue with that. The level of intrusion is minimal, if that. A defense personnel can be present, and I do think it is important. The government provided the habeas order at Your