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.
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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."
He's asked the federal courts to intervene, setting up yet another Guantánamo conflict that could reach the U.S. Supreme Court. The prison camps commander, he said, is "chilling the attorney-client relationship and the accused's ability to have access to the courts."
Woods, a one-star admiral, became the 11th commander of the detention center in August, two months before the Pentagon formally charged Nashiri with killing 17 American sailors as a behind-the-scenes planner of al Qaida's October 2000 bombing of the USS Cole off Yemen.
Woods, not a lawyer, has made his career in information jamming. He ran a sea based air wing that flew missions to jam enemy air defenses in Afghanistan. Then he worked on a program that tried to interfere with the signals of remote-control detonators in Iraq, and thwart deadly roadside bombs. His most recent post was at Navy headquarters where he was director of the strategy and policy division.
Nashiri's case is already complicated by the way interrogators treated him when he was held in a clandestine CIA prison. A congressional inquiry found that Nashiri, a former millionaire from Mecca in Saudi Arabia, was waterboarded and interrogated as a loaded gun and a revving drill were held near his head.
Nashiri, who has been imprisoned at Guantánamo for five years, is being held in a secret part of the camp where, according to war court testimony, Woods had his staff do a surprise search of the captives' legal materials in October to see what earlier prison staff had allowed in.
In a hearing in November, Nashiri's attorneys objected to the search, and Pohl sided with them. But the policy that the prison camps drafted in response to Pohl's ruling is too broad, the defense attorneys argue, allowing Guantánamo personnel to read documents and then decide whether they agree with the lawyer that the documents should be considered privilege.
The defense lawyers' refusal to send mail to their clients applies to about 30 detainees who could some day face a war-crimes tribunal. The remainder of the 171 Guantánamo captives have either been cleared for release or will be held indefinitely with no prospect of trial because of problems with the evidence against them.