http://www.truth-out.org/emails-tell-attorneys-concerns-new-guantanamo-legal-mail-policy/1320327701
New Policy Allows Guantanamo Officals to Seize and Read Detainees'
Privileged Legal Mail
Thursday 3 November 2011
by: Jason Leopold, Truthout | Report
*/Two weeks ago, in response to Truthout's queries about the matter, Lt.
Col. Joseph Todd Breasseale, a Defense Department spokesman, said Woods,
who was named Joint Task Force Guantanamo commander in August, "directed
that a security search be undertaken of detainee cells and materials in
Camp 7," where the 14 high-value detainees reside./*
*//*
*/"This security search is not in response to any particular security
threat and does not involve detainees in other [Joint Task
Force-Guantanamo] detention facilities," Breasseale told Truthout
October 14./*
*//*
*/He would not disclose why the "security search" was initiated./*
*//*
*/"We will never discuss security apparatus or security protocols around
detainees," Breasseale said./*
Attorneys defending some of the high-value detainees imprisoned at
Guantanamo Bay are pushing back against a new policy implemented by Navy
Rear Adm. David B. Woods
<http://www.navy.mil/navydata/bios/navybio.asp?bioID=534>, the commander
of the prison facility, which calls for the seizure and review of the
prisoners' legal mail and other materials from the top-secret camp where
they are housed.
The policy was apparently enacted in early October, about a month before
the Pentagon announced that Abd Al-Rahim Nashiri
<http://www.mc.mil/CASES/MilitaryCommissions.aspx>, the alleged
mastermind of the October 2000 USS Cole bombing, would be arraigned on
murder and terrorism charges.
On Tuesday, military attorneys representing six high-value detainees
also facing military commissions, including the lawyer defending
Nashiri, sent a letter
<http://www.truth-out.org/sites/default/files/Guantanamo-HVD-letter-mail.pdf>
to William Lietzau, deputy secretary of defense for detainee affairs,
demanding he order Woods to "cease and desist the seizure, opening,
translating, reading and reviewing of attorney-client privileged
communications."
The nine military attorneys who signed the letter to Lietzau said they
have not received responses to numerous other letters they had sent him
over the past year about the seizure of legal mail, which they
characterized as "illegal," and "detention practices" not in compliance
with domestic and international laws. The attorneys warned that if these
issues are not immediately dealt with they will litigate it "to the
fullest extent."
A September 2008 protective order established the groundrules for
attorney-detainee communications at Guantanamo, which included the
handling of "legal mail."
"'Legal mail' means letters written between a detainees counsel and the
detainee that are related to the counsel's representation of the
detainee, as well as privileged docuemnts and publicly filed legal
documents related to that representation," the protective order states.
A separate March 2011 protective order issued for high-value detainees
facing military commissions, such as Nashiri, set the policy for the way
"legal mail" would be handled by military personnel stationed at
Guantanamo. The protective order notes that "legal mail," approved as
such by military personnel who first review incoming documents from
detainees' attorneys, is placed into a sealed envelope and delivered to
a detainee. The envelope containing legal mail must be opened by
military personnel in the presence of the detainee.
*"Security Search"*
Two weeks ago, in response to Truthout's queries about the matter, Lt.
Col. Joseph Todd Breasseale, a Defense Department spokesman, said Woods,
who was named Joint Task Force Guantanamo commander in August, "directed
that a security search be undertaken of detainee cells and materials in
Camp 7," where the 14 high-value detainees reside.
"This security search is not in response to any particular security
threat and does not involve detainees in other [Joint Task
Force-Guantanamo] detention facilities," Breasseale told Truthout
October 14.
He would not disclose why the "security search" was initiated.
"We will never discuss security apparatus or security protocols around
detainees," Breasseale said.
The statement Breasseale provided to Truthout is identical to the one
the Department of Justice (DOJ) gave Stephen Truitt, an attorney who
represents Yemeni citizen Hani Abdullah, when he inquired as to whether
the policy would be extended to his client, who is not a high-value
detainee.
Truitt sent an urgent email to DOJ civil division attorneys David Avila
and Andrew Warden on October 14, stating that he learned Woods "has
embarked upon the wholesale seizure and content examination (not merely
for contraband such as paper clips etc.) of legal mail to at least one
[high-value detainee] and that this procedure is to be extended to other
prisoners in the other facilities."
Truitt said in his email that he objected to the "extension [of] any
such procedure" to Abdullah and warned Avila and Warden that if Woods'
"unlawful" "security search" is extended to his client "further steps
will become necessary."
"I ask for your immediate confirmation that this procedure will not be
visited on Mr. Abdullah," Truitt wrote.
Warden told Truitt that the "security search" was only aimed at the
high-value detainees in Camp Seven.
Brent Mickum, an attorney representing Abu Zubaydah, the first
high-value detainee captured after 9/11, said he, too, sent an email to
the DOJ inquiring about the legal mail policy, but he never received a
response.
"We have been notified that the prisoners at Camp Seven are in the
process of being subjected to certain search procedures that may be
unauthorized and/or improper," Mickum wrote, also on October 14, in an
email he sent to DOJ attorney James Luh. "More specifically, we have
been informed that cell searches are being conducted at Camp Seven, and
that, as part of that process, a prisoner's legal mail and legal papers
are being removed and reviewed and, if necessary, translated by
[Department of Defense] personnel."
"Furthermore, we are informed that no procedures are in place to prevent
the improper transfer of this information," Mickum added. "Please
confirm whether or not any of our client's written materials have been
removed from his cell. If so, please inform us whether those materials
have been, or are scheduled to be returned to him. To the extent written
legal materials were seized, please identify the materials reviewed, the
indentity(ies) of the person(s) who conducted the review, and the
alleged reason(s) for the review."
In an interview, Mickum said the "fact that the government is doing this
is nothing new."
"My British clients [Bisher Al Rawi, Jamil El Banna and Martin Mubanga]
had their legal mail seized and reviewed before it was ever provided to
them," Mickum said. "That the government would take legal mail, read it,
and not make any effort to protect sensitive information speaks volumes
about what the Department of Justice and the Department of Defense think
about the legal system. But what really shocks me is that at this late
date this issue is still isn't resolved."
Two other DOJ attorneys, however, expressed concern about the new
guidelines, stating in emails in response to questions by lawyers
representing two detainees, that they were "unaware" and "surprised" it
had been implemented and promised to "look into it."
The attorneys, who said they have not received any follow-up
correspondence from the DOJ, requested anonymity and asked that Truthout
not reprint the contents of the emails because they feared doing so, in
addition to discussing the issue on-the-record, would strain their
already fragile relationships with the DOJ and impact their clients' cases.
A DOJ spokesman declined to comment for this story.
*"Privilege Review Team"*
Mark Denbeaux, the director of the Seton Hall Law Center for Policy and
Research, who is also a member of Zubaydah's legal team and represents
another high-value detainee, said he does not understand why high-value
detainees' legal mail would be seized since the attorneys representing
the prisoners are already under a strict protective order that requires
a "privilege review team," a panel made up of Defense Department
attorneys and intellgence officials as well as interpreters/translators,
to scrutinize materials lawyers want to present to their clients.
"No document has ever made its way to a detainee from a lawyer without
going through the privilege review team to determine if it is safe,"
Denbeaux said. "The question is, why now? Has the system that has been
in place been abused in some way?"
Denbeaux and Christa Boyd Nafstad wrote about the privilege review team
<http://ir.lawnet.fordham.edu/ilj/vol30/iss3/3/> in an article titled
"The Attorney-Client Relationship in Guantanamo Bay," published in 2006
in the Fordham International Law Journal.
"A 'privilege review team' will read all mail from the attorney before
sending it to the client. The attorney is not allowed to write about
anything concerning 'unnecessary outside information'"; if the
correspondence contains anything the privilege team deems unnecessary,
the letter will not be forwarded to the client," Denbeaux and Nafstad
wrote. "Not only does this regulation inhibit meaningful dialogue
between attorney and client, it also runs afoul of the United Nations
Basic Principles on the Role of Lawyers, which states '[g]overnments
shall recognize and respect that all communications and consultations
between lawyers and their clients within their professional relationship
are confidential.'"
The privilege team, attorneys say, also suppresses important information
hindering their ability to do their jobs. For example, last week, the
privilege review team declined to declassify and turn over to Zubaydah’s
attorneys a power-of-attorney form
<http://www.truth-out.org/department-justice-balks/1319810816>he signed
that authorized his legal team to file a lawsuit on his behalf against
Lithuania for failing to reopen an investigation to determine the role
its government played in Zubaydah’s rendition to a CIA black site prison
located in the country and the torture he was subjected to there in 2005.
Moreover, Denbeaux said the Department of Defense and DOJ's statements,
which indicated that the "security search" of high-value detainees'
"cells and materials" was not ordered "in response to any particular
security threat" concerned him.
"That is exactly what the government didn't say [in June 2006] when they
justified seizing 50,000 pages of documents from detainees, including
envelopes clearly marked 'attorney-client privilege," Denbeaux said.
The seizure of detainees' materials back then was a direct response to
the three deaths that occurred on the island, which the Defense
Department claims were suicides.
Guantanamo officials went to court justifying the unprecedented move,
stating they needed to review the documents, including legal mail, to
determine if there was a conspiracy that would result in mass suicides
at the prison facility.
The documents were eventually returned to the detainees and the
government filed a motion in federal court asking a judge to approve the
creation of a "privilege team." The motion was granted in September 2006.
Denbeaux said even if Woods' policy is determined not to be a violation
of the law it does "devastating harm to the attorney-client relationship."
"The client has no reason to trust the information he is providing to
his attorney is not being abused," Denbeaux said.
--
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