GUANTANAMO BAY NAVAL BASE, Cuba (CN) — The war court at Guantanamo Bay heard testimony Tuesday about prosecutorial seizure of privileged materials from an accused 9/11 plotter.
Walter Ruiz, a defense attorney for Mustafa Ahmad al-Hawsawi, brought the allegations in Feb. 12, 2015, motion to show cause, one week after the government took two legal pads from his client.
Ruiz said the pads, which an anonymous deputy staff judge advocate returned to his client a day later, contained 44 pages of notes al-Hawsawi took during meetings with his attorneys.
Allegations of such breaches have hovered over the military commissions at Guantanamo for several years. Attorney-client privilege protects and maintains confidentiality of information clients shares with counsel. The threat of intrusion into these communications can chill the attorney-client relationships, and potentially prevent defense attorneys from carrying out their mission of putting forward a zealous defense.
Last year's motion says the problem remains ongoing, despite a court order to stop it.
Ruiz, who has experience trying capital cases, questioned four witnesses Tuesday about why the materials were seized, who read them, and whether any of the materials were "read, scanned or copied by the government."
The attorney told reporters after the hearing that conspicuously absent from the witnesses was the guard who actually took the materials from al-Hawsawi's cell and conducted the search.
Al-Hawsawi is accused of facilitating money and western clothing for the 9/11 hijackers, and faces the death penalty along with the other four accused plotters.
In its response to the defense motion, the government said detainees are required to keep privileged materials in a special "legal bin." Guards search detainee cells - including the legal bins - regularly for contraband, and take items not immediately identifiable as privileged for further inspection.
"Capt. L," a past legal adviser for Camp 7, testified by video that any improperly marked materials found outside the bins were "fair game."
The witness told prosecutor Bob Swann during questioning that the legal pads were taken because they lacked the appropriate markings. After review, the materials were properly marked and returned to al-Hawsawi the next day, the witness said.
Capt. L's statement conforms to the prosecution's response brief.
"Following a determination that the seized materials contained privileged legal information, it was promptly returned to Mr. Hawsawi on the same day as that determination was made," the pleading states.
Al-Hawsawi's hearing this week comes as the detainee prepares for Oct. 14 surgery to treat injuries from apparent sodomy during CIA torture.
Capt. L said the detainee's legal pads had Arabic writing, but also contained al-Hawsawi's handwritten detainee number on them and were not officially stamped.
Swan asked the witness whether the materials would have been taken if they had contained an official stamp. "No sir," the witness responded.
Prosecutors say this meant that that the items fit the bill for regular contraband inspection. A third witness who testified in person, "assistant watch commander 1482," said such inspections are performed daily.
The assistant commander was present during two months of al-Hawsawi cell searches in 2015, and told the court he watched a female soldier take the materials and put them in a plastic bag via closed-circuit television while al-Hawsawi was at a legal meeting.
He said the materials were sent for translation because they were in a foreign language.
The process for returning confidential material is laid out in the government's pleading. Material is first placed in a sealed container with the date, time and identification of the staff member who observed it. After that it is retained by the noncommissioned officer who supervises the inspection. Confidential material is retained by an attorney representative of the staff judge advocate. The pleading says defense counsel receive immediate notification, after which the material should be "promptly returned" to counsel.
Al-Hawsawi's defense counsel notes, however, that it never received notice from the government about the seized notebooks.
"No procedure in AE 018U allows the government to seize the notes without informing defense counsel, and their decision to do so leaves the defense highly suspicious as to their motives and the source of their instructions," the defense motions says, referring to the regulation that governs the process.
The prosecution acknowledged the responsibility to inform, but denied any wrongdoing.
"While defense counsel should have been reasonably notified of the incident by JTF-GTM0,4 at no time did JTF-GTMO duplicate, photograph, or otherwise copy by any process the subject material or divulge their contents to the Prosecution." the prosecution filing states.
A fourth witness, "Major," testified that personnel do not contact defense counsel directly, but rather a defense courier who returns the items. The witness said he has done that about 70 times this year, but less than 50 times for the 9/11 defendants.
One allegation of trampled privilege from 2013 says the government installed hidden microphones in smoke detectors outfitting the rooms where Guantanamo defense counsel meet their clients.
The microphones were removed soon after, and the government says it never took advantage of that spying capability.
During Tuesday's hearing, Air Force Lt. Col. Sterling Thomas, part of Ammar al-Baluchi's defense team, noted that detainees participate in their own defense and sometimes create their own defense materials. He asked the assistant commander how detainees are supposed to mark such documents when they lack access to the official stamps.
The assistant commander said they should be stamped beforehand somehow, but said he would leave that issue for the court to hammer out.
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