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Detainee mail at issue during Guantanamo hearing

By Larry Shaughnessy, CNN Pentagon Producer
updated 7:52 PM EST, Tue January 17, 2012
STORY HIGHLIGHTS
  • A hearing is being held for a suspect in the USS Cole bombing
  • The Guantanamo Bay hearing is being carried on closed-circuit TV
  • The first day dealt with motions and defense concerns
  • Defense lawyers say attorney-client privilege is being violated

FORT MEADE, Maryland (CNN) -- The name of Abd aI-Rahim Hussein Mohammed Abdu al Nashiri -- a suspect in the 2000 USS Cole bombing -- was hardly spoken during the first day of pretrial hearings in his case. Most of the discussion and testimony revolved around the matter of attorney-client privilege.

In the United States, a suspect in a crime has the right to communicate with his attorney about his case without anyone listening to or reading that communication.

Nashiri's defense attorneys argued Tuesday that several policies in place for detainees at Guantanamo Bay violate that privilege. The hearing at Gitmo, as it's called, was viewed by reporters via closed-circuit television at a location on Fort Meade, between Baltimore and Washington.

Defense attorneys were especially concerned about mail between defense attorneys and their clients, and monitoring of the computers they use while working on the case by the Department of Defense.

Rear Adm. David Woods oversees the detainee operations at Guantanamo. He testified Tuesday about an order he gave regarding Nashiri's and other detainees' mail from their lawyers being examined before it goes to their clients.

Defense attorneys insist that violates privilege, but Woods testified that the people who examine the mail don't actually read privileged mail between attorneys and their clients at Guantanamo. He testified that the team that examines the mail, a Privilege Review Team (PRT), simply looks at the mail to make sure each page is properly marked as privileged.

"Are they reading the mail?" defense attorney Lt. Cmdr. Stephen Reyes asked Woods.

"Not to my knowledge," Woods said.

Once PRT members determines that the mail is properly marked, they allow it to be delivered to the detainee. The detainees are supposed to store it in a bin in their cell. If the PRT has approved the mail, guards who might later inspect the cell to make sure the detainee has no contraband will see that it is approved mail, according to Woods.

Woods said the system is a matter of security, to protect the guards and others at the facility. "I'm trying to please all parties in this case," he said.

The PRT, Woods said, is made up of former intelligence analysts, attorneys or law enforcement agents. A defense attorney asked Woods: If all they were supposed to do was inspect the mail for proper markings, why did the team have to be made up of legal and intelligence experts? Woods replied that they were contractors and it wasn't his contract.

Under cross examination, Woods testified that PRT members are under orders not to share anything they learn about detainee mail with anyone outside the group.

Col. James Pohl, the military judge in the case, said he'll hear more discussion of the mail issue Wednesday before ruling.

On the issue of the computers, defense attorneys objected to a DoD rule that states they must allow their computers to be monitored by the Pentagon, even as they work on their case.

They requested that the Pentagon information technology office create what's called an "enclave" of users who could share information about the case and more importantly supervise and control the people who could monitor their computers.

Pohl told the attorneys in the case to avoid getting too technical in the discussion of computer security. "I really don't want to get into a lot of computer talk, because you'll lose me rather quickly," he said.

The prosecution presented a witnessed from the Pentagon who works on information security, Adam Bennett. Prosecutors insist that the defense team could achieve the same level of security by simply encrypting everything they write about the case before they send it to each other.

Bennett testified that even in an enclave, defense attorneys would want to use encryption to protect their writings.

Col. Pohl agreed to allow the defense attorneys to use encryption and if they find security of their privileged work product is still an issue, he would consider other measures.

Brig. Gen. Mark Martins, the chief prosecutor of all military commission cases, defended the government's actions in the case and said there was no attempt to deny Nashiri his rights.

"I will note that far from seeking to violate attorney-client privilege, the United States respects the privilege and the role of defense counsel," he said.

A total of ten motions are being considered during this hearing.

Earlier Tuesday, Pohl granted a motion filed by the government and supported by the defense that would allow for more public viewing opportunities of the closed-circuit hearing from Guantanamo Bay Naval Base, where the hearing is being held and the U.S. mainland. Now the public is allowed to see the live closed-circuit feed at Fort Meade.

Both sides agreed it should be made available to the "widest possible" audience, but disagreed on precisely where the best place to be to hold additional viewings.

Pohl granted the motion. But so far, details of exactly how many other public view locations will be made available -- and where they will be -- have not been determined.

Pohl also ruled against a defense motion about relaxing the rules on how Nashiri, who sat quietly throughout the hearing, is restrained during meetings with his attorneys outside of court. They want him to be unrestrained. The prosecution insists it is a safety issue for the entire detention facility.

Col. Pohl agreed and denied the defense motion.

After the hearing, the defense painted the day's developments in the best possible light.

Richard Kammen, a civilian attorney representing Nashiri, said, "We are satisfied with the day's proceedings."

But he said some of the rulings regarding how the defense builds its case could further delay Nashiri's trial. He's accused of crimes dating back to 2000, and has been in custody since 2002. But Kammen said that he doesn't expect the trial itself to begin until 2015, and maybe later.

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