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The Continued Subversion of Attorney-Client Privilege at Guantanamo Bay

Creative Commons-licensed photo on Flickr. (Image: Lance Page / t r u t h o u t; Adapted: Joe Gratz, Paul Keller, Hkuchera)

With each hearing before the Guantanamo military commission, it becomes more evident that privileged legal communications defense attorneys are supposed to be able to have with their clients are being violated.

Khalid Sheikh Mohammad, Walid Muhammad Salih Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi are all on trial for their alleged involvement in the September 11th attacks. Their lawyers have challenged alleged eavesdropping on communications during commission proceedings, in holding cells and in meeting facilities.

On February 14, court heard from Lieutenant Commander George Massucco, an assistant staff judge advocate for Joint Task Force-Guantanamo Bay, Cuba (JTF-GTMO). He was called to the stand to provide details on why guards had seized already stamped, cleared and approved documents relating to the defense from the 9/11 defendants.

Massucco said a “safety inspection” had been conducted on February 11 and February 13. There had been no procedure carried out to go into cells and seize legal bins. What appeared to have happened was some of the stamps had dates, some didn’t. Some had initials and some did not. Also, the guards, upon looking at the stamps, concluded “materials contained them in were disturbing to them.”

According to Carol Rosenberg’s reporting, legal papers were seized from Bin Attash, Bin al Shibh and Mohammed. Toilet paper, which Bin Attash had apparently written out some notes on his defense, was seized. A copy of Black Banners by former FBI agent Ali Soufan, Perfect Soldiers by Terry McDermott and the 9/11 Commission Report were taken from Bin al Shibh. A photo of the grand mosque in Mecca was taken from Bin Attash. The guards also found Mohammed had a pen refill in the binding of a book and they seized it.

Bin Attash disrupted proceedings in the morning. His attorney, Cheryl Bormann, explained he now “believes that every time he comes to court his legal materials are going to be seized.” The judge has ordered the accused to be present during proceedings, which Bin Attash objected to if it means guards are going to be inspecting materials in his cell while he is in court.

Bormann said some of the communications guards seized were taken for a “second time.” David Nevin, Mohammed’s attorney, told the judge Mohammed had his materials seized when he was meeting with his defense team. James Harrington, Bin al Shibh’s attorney, said the seizure of materials previously cleared “causes an enormous, enormous emotional problem which makes our job close to impossible.

Meeting Facilities Bugged with Devices That Look Like Smoke Detectors

Also, recently, defense lawyers found out the FBI had installed listening devices in the facilities where they have been holding attorney-client meetings.

On February 12, Captain Thomas J. Welsh, a staff judge advocate for JTF-GTMO, provided details on Echo II, a facility where high-value detainees including the five accused meet with their attorneys. He testified during a January 2012 “proffer session,” which involved the “prosecution and defense were meeting on a potential deal,” he had seen a “law enforcement official on headphones listening in to the meeting.” The official was an FBI agent.

Prosecutors, defense attorneys and law enforcement officials were present. It was “standard protocol for them to monitor these things remotely.” Yet, after he became aware, he told the court he approached Col. Danny Thomas, a former Joint Detention Group commander, and said, “Hey, I saw that law enforcement — or just basically described that I — you know, that there was audio capability. And he said, yeah, we have capability. And I said to him, hey — and he said, don’t worry, we do not monitor any attorney-client meetings.”

The following day, February 13, Army Col. John Bogdan of the United States Army gave testimony on his role as a commander for the Joint Detention Group at Guantanamo since June 7, 2012. He was not made aware of the fact that the Echo II compound had audio monitoring capabilities, but he was aware that the facility had equipment for video monitoring. Cpt. Welsh recently told him about the incident involving the FBI agent. When he learned of the audio monitoring, he spoke with J2, the prison’s intelligence unit. They conducted a search for equipment and found “a panel and microphones in the cells for audio monitoring.”

The prosecution seemed to argue the prison was not trying to conceal the monitoring devices, but testimony in court indicated they look like “smoke detectors” and troops and civilians thought they were smoke detectors.

Bogdan found out the “FBI originally installed the technical systems within Echo II.” FBI special agent in charge, Andy DeLaRocha, confirmed there were audio monitoring systems and video monitoring systems but that neither had “any capability for recording.” (Of course, that does not mean someone could not have been eavesdropping and documenting meetings.)

According to Bogdan, it is intelligence agencies that own all the high-tech equipment. He said, “It wasn’t surprising that the FBI had been involved in something over there. They had not been there since I got there, but we work closely with the FBI and they’ve been involved in more than one of our operations.”

Bogdan testified he had issued an order to disconnect the audio equipment.

Eavesdropping on Attorney-Client Communications During Commission Proceedings?

On January 28, defense lawyers discovered an original classification authority (OCA) most likely with the CIA was listening in to proceedings and had the capability to censor them if they thought sensitive information would be revealed. Judge Col. James Pohl was found to not be in complete control of the courtroom, as the simple mention of the word “secret” led proceedings to be censored for a few minutes without his authorization.

Navy Commander Walter Ruiz, who is representing al-Hawsawi, expressed concern, “Before we proceed any further, we can only assume that maybe they are monitoring additional communications, perhaps when we are at the counsel table. We know we have green lights that have the ability to record.” He urged the court to get defense lawyers answers on what the body monitoring proceedings was capable of doing. [Subsequently, Pohl ordered outside “censor buttons” to all be unplugged.]

Justice Depends on “Zealous and Effective Counsel” Even for Those Accused of Heinous Crimes

Attorney-client privilege issues have been ongoing for years now. In December 2011, Rear Admiral David Woods issued an order with new rules for inspecting communications between Guantanamo prisoners and their lawyers. As the Associated Press reported, the defense attorneys for the five 9/11 suspects objected to the proposal to have a “privilege team,” which “would include Defense Department and law enforcement officials [that] would conduct a security review of all communications to the prisoners.” The lawyers argued such review was “unnecessary” because they “all have security clearances and know not to release classified information. The procedure proposed was also “overly intrusive,” as it would be impossible to ensure that officials did not share information with prosecutors or other government agencies.

The American Bar Association sent a letter of complaint to then-Pentagon chief Leon Panetta on December 21, 2011:

The American system of justice depends on the essential role of lawyers in counseling their clients.  This includes providing zealous and effective counsel, even to those accused of heinous crimes against this nation and its people.  In furtherance of this objective, in August 2003, the American Bar Association adopted a policy calling upon Congress and the Executive Branch to ensure that all defendants in any military commission trials receive dedicated and effective assistance of counsel…

It added:

…We are therefore deeply troubled to learn that a new policy at Guantanamo Bay appears to violate both the letter and spirit of the attorney-client privilege.  Lawyers for detainees report that their highly privileged attorney-client communications are being intercepted and reviewed by the U.S. government.  It has even been suggested that content from these communications may be reaching the prosecution team.  In some instances, materials attached to and referenced in legal correspondence (such as expert witness qualifications and newspaper articles) are being withheld from the detainees entirely.  A security rationale has been provided in response to the lawyers’ objections; however, there is no information about any security violation or incident that prompted the recent change in policy…

In the case of Abd al-Rahim al-Nashiri, Pohl ruled in February 2012 that attorney-client mail inspected by guards at Guantanamo was protected and confidential and could not be released.  JURIST summarized, during the same month, James Connell, defense lawyer Ali, filed suit in the US District Court for the District of Columbia “challenging the order for military officials to read all legal correspondence between the lawyers of the suspected 9/11 conspirators and their clients.” In January 2012, “Chief Defense Counsel for Guantanamo Bay war crimes tribunals, Colonel JP Colwel, ordered attorneys under his command not to comply with the policy.”

No ruling on the motion on alleged eavesdropping and violations of attorney-client privileged communications was issued before proceedings wrapped. The judge ordered no remedy for harm or damage done. However, Woods was scheduled to testify during the next five-day hearing scheduled in April on matters related to privileged communications.

Finally, it is worth noting the events of the past months, which have exposed the surveillance state mechanisms being used on defense attorneys, help bolster the fears of Nevin, who is a plaintiff in the American Civil Liberties Union (ACLU) case challenging the FISA Amendments Act because it authorizes warrantless surveillance by the National Security Agency (NSA).

Nevin declared in a joint statement with defense attorney Scott McKay, “We are concerned that, under the new law, the National Security Agency may be monitoring our communications, particularly because there have been numerous reports that the government is monitoring communications in and out of countries in which we have clients.” He continued, “We have an ethical obligation to maintain client confidentiality, and we can’t have substantive legal communications about the cases in which we are involved if we can’t ensure that those communications are confidential.”

“We have offered to represent Khalid Sheikh Mohammed, whom the government accuses of masterminding the 9/11 attacks,” Nevin added. “Our offer of representation has required us to be in regular correspondence with Mohammed’s military defense counsel and to visit Guantanamo on more than one occasion. Our work may require us to correspond with potential witnesses about sensitive information, making us even more susceptible to improper government surveillance.”

The Supreme Court heard oral argument on the ACLU challenge last October. There has been no ruling issued yet.

Because the defense attorneys are challenging the different mechanisms for eavesdropping, spying and interfering with communications, it is becoming clear how military and intelligence agencies are reluctant to let justice unfold in court without improper intrusions.

Transcripts from yesterday’s proceedings are hard to read without concluding the entire Guantanamo military commission process is a total farce and yet players involved continue to maintain a commitment to ultimately having cases heard in what they hope will be perceived as a legitimate judicial process. Yet, any reasonable observer can tell the war court is entirely dysfunctional with rules being made up as it sputters along.

It is hard to tell if the 9/11 defendants are any closer to trial after the conclusion of each pre-trial hearing. And each day of proceedings is a reminder of the abject political cowardice of the administration of President Barack Obama and the Justice Department under Attorney General Eric Holder, which ultimately chose to have the military hear the 9/11 cases instead of federal civilian courts.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."