Rear Adm. David Woods considered the objections of defense lawyers but authorities at the US base in Cuba do not believe the new rule would violate attorney-client privilege, as defense lawyers have argued, Navy Cmdr. Tamsen Reese said.
Reese said the commander made changes to the order, softening language that would have apparently added restrictions to attorney-client visits, but that he believes legal mail should be reviewed by officials outside the prison as a security measure and to prevent guards or other prison staff from having to do it.
“He’s trying to strike a balance,” she said in a telephone interview. “He’s got responsibilities. He’s got to keep security and good order and force protection. And he’s got to allow proper procedures for legal meetings between defense counsel and detainees and here’s the way we’re going to do it.”
Deputy Chief Defense Counsel Bryan Broyles said lawyers are still reviewing the order but it appears no major changes were made and they believe it still violates attorney-client privilege and deprives the prisoners of their right to counsel in a war crimes tribunal that has been delayed for years by political and legal challenges.
The new order would require a team of law enforcement and Defense Department officials to review mail from lawyers to their clients but would prohibit team members from revealing any of the content to prosecutors. Broyles argues that such a team would only be legal if it was established and managed by the civilian judiciary.
“They seem to be under the mistaken impression that if they take one of their employees and tell them, ‘You can look at attorney-client privilege material but don’t tell anybody about it,’ that that retains privilege,” he said. “But that’s not how privilege works.”
Broyles said that the defense believes that, for now, these new rules would only apply to the five prisoners who have been accused of helping to plan and carry out the Sept. 11 attacks. That’s because a military judge has already rejected the creation of a similar review process in the only other active case at Guantanamo, the trial of Abd Al-Rahim Al-Nashiri, who is charged with orchestrating the attack on the USS Cole in 2000.
“They will have to go back to the judge to have this process in place” in the Nashiri case, Broyles said. “I think that will be an interesting conversation.”
There is no judge yet in the Sept. 11 case becuase the charges against the five prisoners accused of helping to plan and carry out the attacks, including self-proclaimed mastermind Khalid Sheikh Mohammed, have not been finalized. They are expected to be arraigned in 2012.
