WASHINGTON -- Military lawyers for Guantánamo detainees who could someday be put to death are accusing the new prison commander of censoring protected attorney-client documents, raising a new legal controversy that spotlights ongoing concern about the fairness of possible military trials.
The Obama administration reformed the military commissions in consultation with Congress to give accused terrorists greater rights. But an order by the new prison commander that all attorney-client mail be reviewed for contraband, including information that the commander argues the detainees shouldn't be allowed to have has attorneys crying foul.
The Pentagon's chief defense counsel for military commissions, Marine Col. Jeffrey Colwell, has instructed war court defense lawyers to no longer send their clients privileged mail, saying the prison camps policy of inspecting attorney-client mail violates the lawyers' ethical obligations. For a week now, defense lawyers have honored his instruction.
Meanwhile, a Navy defense lawyer, Cmdr. Walter Ruiz, has filed suit before the U.S. Court of Appeals here, accusing the prison of violating the 6th Amendment rights to a fair trial of a Saudi detainee accused of helping to move money that financed the Sept. 11, 2001, terrorist attacks.
At Guantánamo, the chief military commission judge, Army Col. James Pohl, is being asked to referee the ethical question at a hearing that opens Tuesday for accused al Qaida bomber Abd al Rahim al Nashiri. Nashiri';s lawyers argue that the prison camp policy is at odds with Congress' mandate to give accused war criminals the assistance of counsel.
At issue is what information a lawyer may exchange with his captive client.
Defense lawyers argue that their material should be scanned only for physical contraband — anything that might be used to harm someone or something. Or as Pohl put it at a hearing in November, they should be looking for "staples, pins, baseball bats" versus "content."
But the prison commander, Rear Adm. David B. Woods, wrote lawyers last year that his staff would study and sort materials for "escape plots" or subjects of a "sexual nature."
Then the prison camps went further, the defense lawyers allege. At one point, prison camp lawyers refused to allow an official document from a senior Pentagon official, retired Vice Adm. Bruce MacDonald, to go to alleged 9/11financier Mustafa al Hawsawi as a privileged communication. In it, MacDonald approved Hawsawi's choice of a "mitigation expert" for his future capital murder trial.
In another instance, prison camp lawyers blocked a pleading by James Connell, a Pentagon-approved lawyer for accused 9/11 plotter Ammar al Baluchi, saying "Baluchi wasn't entitled to get his lawyer's draft brief as legal mail," Ruiz said.
Navy Cmdr Tamsen Reese, the prison camps spokeswoman, wouldn't comment on either of those episode or discuss the detention center's latest legal mail inspection policy, but said in an email that the issue could come up at this week's Nashiri hearing. Pohl ruled in November that Guantánamo personnel could not look at mail between Nashiri and his attorneys as long as it was properly marked.
"The problem is they are reading privileged communications and he is censoring what he believes the client should get," Ruiz said of Woods. "Our ethical rules are very clear: Attorneys cannot disclose privileged matters unless it is to avoid imminent harm or danger to a person or persons or in response to a lawful order, such as a judge's."