Attorney-Client Privilege? Not at Gitmo
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Attorney-Client Privilege? Not at Gitmo The perverse rules governing the September 11 trials

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A decade after the U.S. captured the five accused plotters of the September 11 attack, held and allegedly tortured them in CIA "black sites," and then sent them to Guantanamo Bay, the military is still obstructing the defendants’ communications with their lawyers. At risk is the men’s fundamental right to prepare a defense. Pretrial hearings last week at Guantanamo detailed the damage from the latest round of severe restrictions on attorney-client communications, which the base’s prison commander imposed in late 2011.

In an ordinary prisonwhere the defendants might be now had the Obama administration stuck with its plan to try these men in federal court in New Yorkattorneys can simply visit their clients in a special meeting room and discuss all aspects of the case. Communications rules are set by the attorney general, not a prison commander. But Guantanamo, where 166 detainees in the so-called “war on terror” have been locked up for years, most without charge, is no ordinary prison.

The hearings took place before a military commission in a prefabricated courthouse surrounded by concertina wire. Much of the testimony of three military officials who drafted the rules would have been comical if the stakes weren’t so highboth for the defendants, who face death if convicted, and for the reputation of the U.S. as a defender of the rule of law.

Capt. Thomas Welsh, the former top lawyer for detention operations at Guantanamo, went so far as to suggest that one particularly harsh rule didn’t hinder meaningful dialogue because it only banned lawyers’ comments to clients, not vice versa.

“Have you had conversations with people where it was a monologue, not a dialogue?”  one defense lawyer, David Nevin, asked Welsh. “It’s not all that useful as a way of interacting with somebody, is it?”

The rule in question bars lawyers from discussing “jihadist activities” or “information about current or former detention personnel” with their clients. Under the ban, Nevin noted, defense lawyers can’t ask the defendants why they may have plotted against the U.S. They also can’t discuss who may have tortured them when they were held in CIA black sites before being sent to Guantanamo in 2006. (In one month alone, the CIA subjected Khalid Sheikh Mohammad, the alleged September 11 mastermind known as KSM, to 183 rounds of a form of mock execution known as waterboarding.)

Another restriction aired at the hearings forbade lawyers from bringing materialincluding legal documentsto their clients without advance screening of the content, unless they were signed or written by the defense team. For that reason, Nevin said, prison authorities barred him from bringing KSM the list of charges against him.

Similarly, prison authorities told another defense attorney, Cheryl Bormann, that she could not leave her client Walid bin Attash a copy of The Black Banners: The Inside Story of 9/11 and the War Against al-Qaeda, a book by the former FBI agent Ali Soufan, even though it contained a chapter about bin Attash.

Underscoring the arbitrary nature of the order, Bormann asked, “If I were to take the entire chapter devoted solely to Mr. bin Attash and handwrite it myself and submit it typed and marked on every page, word for word Mr. Soufan's words, would I have been permitted … to deliver it to Mr. bin Attash?”

“Yes,” replied the former Guantanamo prison commander who had issued the rules, Rear Adm. David Woods.

Another rule orders lawyers and their clients to “speak in the same language” to the “maximum extent possible” during prison visitseven though none of the defense lawyers speaks Arabic. 

Until the defendants were arraigned and assigned a judge in May 2012, the lawyers’ only recourse for protesting the orders was the convening authority of the military commission, who at that time was Vice Adm. Bruce MacDonald. Under military commission rules, MacDonald was supposed to be a neutral party. But MacDonald’s testimony last week suggested he barely lifted a finger to investigate whether the rules violated the right to prepare a defense.

Among other actions, MacDonald conceded that he rebuffed entreaties by the defense lawyers to meet with him to discuss the unfair rules or to investigate a controversial prison search in October 2011 of bins in which the defendants stored their legal materials. MacDonald also testified that in March 2011 he had drafted similar restrictions on lawyer-client communications with input from the Department of Defense’s legal office and the CIA. When defense lawyers at that time protested MacDonald’s proposed restrictions, Woods, the then-Guantanamo prison commander, issued them instead.

Woods testified at last week’s hearings that the lawyers could have tried to clear banned information through a proposed “privilege team” or even directly through him. But he conceded under questioning that the review team would have included intelligence agents and that he was not required to keep the information confidential.

Woods also asserted that he issued the rules to “facilitate” attorney-client communications while ensuring safety at Guantanamo. While national security issues may well be at stake in the September 11 case, the testimony of the three military officials suggested at best willful ignorance that their rules forced lawyers to choose between curtailing their communications with the defendants and revealing their confidential legal strategies to intelligence agents or the base commander. Not surprisingly, the lawyers chose the former.

Once the September 11 case went to a military commission, the lawyers had to wait another 13 months to have a judge hear these critical issues as the case hiccupped forward between innumerable disruptions ranging from a hurricane to technical mishaps. While the wheels of justice can turn slowly in civilian court as well, the logistical challenges of travel and work at the remote base exacerbated the delaysmany glitches, for example, were due to insufficient bandwidth.

In January, Judge James Pohl, a retired Army colonel, abruptly recessed proceedings for a month after an outside entity widely believed to be the CIA muted the sound system.

Monitoring that could violate attorney-client confidentiality was a constant theme at last week’s proceedings. Defense lawyers made a point of reminding the court of Welsh’s revelation in February that listening devices disguised as smoke detectors had been installed in attorney-client meeting rooms. Welsh insisted the devices weren’t being used to eavesdrop on private conversations.

At the prosecution’s request, Pohl blocked a defense lawyer’s questioning about possible CIA meddling on the island. “Does he [a prosecutor] want me to use the term, ‘the agency who shall remain nameless?’” asked the defense attorney, Walter Ruiz, a Navy commander.

Even some of the family members of September 11 victims whom the military had flown to Guantanamo for the proceedings were shaking their heads.

Only a small number of relatives attend each hearing in person because the courthouse has limited seating. A glass wall separates relatives, journalists and civil society observers from the judge, legal teams and defendants. A row of military guards kept watch last week over the defendants, three of whom including KSM wore camouflage hunting vests over their white robes, in a designation of warrior status.

Pohl is expected to issue new rules on attorney-client communications as early as next month. Revisions that ensure unfettered and confidential client-attorney communication are urgently needed, even if the trial is not expected to begin before 2015.

But the most important step would be for President Obama to concede these proceedings are an affront to justice and transfer the case to civilian courts, which have a proven record of prosecuting terrorism cases. At the very least Obama should disavow any further military commissions trials.

As observers, journalists, prosecutors, and defense lawyers boarded our chartered plane back to the mainland, an airline employee offered a profuse apology: the military had failed to order sufficient meals for the three-hour flight. We appreciated the concern, but as with the “enjoy your stay” welcome we had received, found it a stark contrast with the denial of rights to the prisoners we left behind.

Letta Tayler researches terrorism and counterterrorism at Human Rights Watch. Follow her on Twitter @lettatayler.

 
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