The commander of the U.S. Southern Command has ordered an investigation into claims that somebody was illegally recording attorney-client meetings at Guantánamo from September 2015 to April 2017, a discovery that prompted a general to warn war court defense attorneys that their privileged communications were at risk.
The episode is the latest in a long string of defense lawyers’ complaints about government interference into their privileged work — from the CIA’s having the clandestine capacity to mute court audio to FBI agents trying to turn defense team members into informants to the discovery of listening devices that looked like smoke detectors in legal meeting rooms.
It is too soon to gauge the magnitude of the latest issue. But those episodes, plus the perplexing appearance in court of a former CIA “Black Site” interpreter to translate for an alleged 9/11 plotter, all delayed progress toward the trial of the five men accused of conspiring in the Sept. 11, 2001 attacks that killed nearly 3,000 people.
Now Marine Brig. Gen. John Baker, who runs the Military Commissions Defense Organization, has declared his “loss of confidence” in the integrity of “all potential attorney-client meeting locations” at the remote U.S. Navy base in Cuba in a June 14 letter obtained by the Miami Herald.
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The letter notified prison commander Navy Rear Adm. Edward Cashman and chief prosecutor Army Brig. Gen. Mark Martins that Baker, in his capacity as chief defense counsel, had recommended that defense attorneys suspend meetings with their clients until he is satisfied that the prison was not engaging in “intrusive monitoring ” of their meetings by the prison.
The background to Baker’s June 14 warning, according to attorneys who received it, was a recent discovery that between September 2015 and April 2017 some legal meetings were recorded at Guantánamo. Baker invoked a Nov. 30, 2016 order by the chief Guantánamo war court judge, Army Col. James L. Pohl, that “formally prohibited” Detention Center staff from listening to or carrying out “audio and video recording” of attorney-client meetings.
In response, Southcom commander Navy Adm. Kurt Tidd ordered a commander’s inquiry — known as an AR 15-6 — into the issue, according to Army Col. Lisa Garcia. The inquiry’s scope is “to find facts and make recommendations for future operations,” Garcia said.
Southcom had used a similar commander’s inquiry in 2004 to outsource detainee abuse complaints to two generals in what became known as the Schmidt-Furlow Report. This one is far more secretive, suggesting classified information is involved. Garcia declined to say when Tidd ordered the inquiry, if it had begun and the name or rank of the person tasked to handle it.
“We currently cannot discuss details of any ongoing investigations,” Garcia said by email. “Releasable findings will be shared upon its conclusion.”
Lawyers familiar with the current issue also said much of the information about what happened and how Baker came to learn about it was classified, suggesting something involving an intelligence agency program rather than the guard force.
Earlier this month, the Army colonel in charge of the Detention Center briefed reporters at Camp Echo, the traditional attorney-client meeting site, that his troops watch but neither listen in on nor record the sessions. The prison spokesman, Navy Cmdr. John Robinson III, did not respond to a question on whether he wanted to correct that “talking point.”
Instead, Garcia at Southcom, which oversees the prison, replied that the investigation was underway. Meantime, “we continue to sponsor detainee and attorney meetings in an authorized and legitimate manner” at the remote U.S. Navy base prison complex holding 41 wartime detainees and staffed by 1,500 troops and civilians.
One defense attorney in the Sept. 11 case, Jay Connell, said Monday that Baker issued the warning during the Muslim fasting holiday of Ramadan, when captives and their lawyers traditionally don’t meet. Connell said he was scheduled to see his client, alleged 9/11 conspirator Ammar al Baluchi, in early July after Ramadan, to discuss what to do about Baker’s caution against counting on privileged conversations.
Connell also said he planned to raise the issue with the judge in a future filing.
A Pentagon spokesman for Guantánamo and military commissions issues, Air Force Maj. Ben Sakrisson, said chief prosecutor Martins declined to comment on the issue.
Baker, for his part, declined to comment on the letter obtained by the Herald. He has been one of the most proactive chief defense counsels for military commissions, at times meeting with captives on representation issues and often sitting in court rather than observing proceedings via video feed. Last year, he briefly banned his defense teams from sleeping in the war court’s Camp Justice trailer park due to a lack of confidence in health conditions there.