Wednesday, December 28, 2011

Proposed Guantanamo lawyer-inmate rule sparks backlash

Globe and Mail
Ben Fox
Adam Goldman

The new commander of the Guantanamo Bay prison wants a team of government and law enforcement officials to be allowed to review all communications between lawyers and inmates accused of helping organize the Sept. 11 attacks, The Associated Press has learned.

The proposed changes, contained in a 27-page draft order, have sparked a backlash from the Pentagon-appointed lawyers representing the five Guantanamo prisoners charged in the attacks. They say the new rules would violate attorney-client privilege and legal ethics and deprive the prisoners of their constitutional right to counsel.

The order is still in draft form and has not yet been signed by the commander, a detention centre spokeswoman, Navy Cmdr. Tamsen Reese, said Tuesday. She said the commander was not immediately available for an interview.

Lawyers for the Sept. 11 prisoners received the draft order from the commander, Navy Rear Adm. David Woods, on Dec. 22 and were told to sign an agreement to abide by the rules within 48 hours.
Instead, they sent a written response contending that requiring them to abide by such rules in order to see their clients was illegal.

“This requirement, as a precursor to engaging in client communications, interferes with the attorney-client relationship, compels counsel to violate ethical obligations, and therefore renders it impossible for counsel to effectively represent our clients,” they wrote, appealing for more time to review the proposed order.

The memo was signed by at least one member of each legal team representing the five prisoners, according to a military official who spoke on condition of anonymity because the document had not been publicly released.

The five prisoners accused of helping to organize the Sept. 11 attacks are expected to be arraigned at the base in 2012 in what would be the most high-profile U.S. war crimes tribunal since the World War II era. The five, including the self-proclaimed mastermind of the attacks, Khalid Sheikh Mohammed, are facing charges that include murder and could be sentenced to death if convicted.

The Sept. 11 trial has been delayed for years by legal challenges and a dispute between members of Congress and the White House over whether it should be held in a civilian court on the U.S. mainland or in a tribunal at Guantanamo. A dispute over communications rules between prisoners and their lawyers could add another delay.

The most significant disagreement is over the handling of legal communications, which are typically sent by courier from the defence lawyers, who are based in the Washington area, and the prisoners at the base on the southeastern corner of Cuba.

Under the new rules, a “privilege team,” which would include Department of Defence and law enforcement officials, would conduct a security review of all communications to the prisoners, according to the memo. The lawyers say such a review is unnecessary, since they all have security clearances and know not to release classified information, and also overly intrusive.

They say it would be impossible for Woods to ensure that these officials do not share this information with the prosecution or others because the members of the team wouldn't be under his command.
The chief defence counsel of the military tribunals, Marine Corps. Col. Jeffrey Colwell, said he shares the concerns of the attorneys in the Sept. 11 case. He also objects to a provision in the new rules that would allow detainees to receive only letters from their lawyers and not any supporting documents such as legal motions or articles about their case.

“The government's interpretation is very restrictive,” Col. Colwell said.

Adm. Woods can change the rules because he has authority over the detention centre, where the U.S. now holds 171 prisoners. The government has said that 30-60 of the prisoners could be charged before military tribunals and the new rules would only cover communications between those prisoners and their lawyers. A separate set of rules covers the rest.

Adm. Woods has not said publicly why he has proposed the new rules. In his draft order, he says the new rules he has proposed are motivated by his responsibility for “maintaining safety and security, as well as good order and discipline,” at the prison.

This is not the first attempt by Adm. Woods, who took command Aug. 24, to tighten security at the prison.

In October, the admiral ordered a search of prisoner's cells and the plastic bins where they are allowed to keep personal papers such as mail from their lawyers or family mail sent to them through the Red Cross.

Navy Cmdr. Thomas Welsh, the senior legal official at the detention centre, testified at a hearing in November that the inspections were intended to make sure prisoners did not improperly mix personal and legal mail, which are supposed to be kept in separate bins, and to make sure they didn't have any “incendiary” magazines or material that could pose a security threat.

The defence team for Abd al-Rahim al-Nashiri, the Guantanamo prisoner charged with orchestrating the attack on the USS Cole in 2000, faced a similar set of restrictions in November. A lawyer for Mr. al-Nashiri said they would also violate the attorney-client privilege and asked the military judge in that case to intervene. The judge directed prison staff to not read attorney letters to clients, but came before last week's broader order from Adm. Woods.

There is no judge yet in the Sept. 11 case and so those attorneys cannot yet ask a court to intervene.
Rick Kammen, a civilian attorney for Mr. al-Nashiri, said that his defence team also has concerns about the proposed new rules but has not yet decided how to respond. He said the new changes underscore the argument among many that the cases should be tried in the established civilian federal courts rather than military tribunals, where the rules have evolved in recent years.
“The rules keep changing. The landscape keeps changing daily,” Mr. Kammen said.

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