Latest attorney-client privacy issue at Guantánamo is called ‘unintentional’ listening

Guantánamo warden: 'Sometimes detainees get news before we do.'

Army Col. Steve Gabavics, the warden of Guantánamo Bay Detention Center and guard force commander, speaking to reporters on Saturday, June 3, 2017 at Camp Echo, where lawyers meet captives.
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Army Col. Steve Gabavics, the warden of Guantánamo Bay Detention Center and guard force commander, speaking to reporters on Saturday, June 3, 2017 at Camp Echo, where lawyers meet captives.

A Navy prosecutor said unauthorized, unidentified people “unintentionally” overheard detainees consulting with their attorneys at a special, irregular meeting site to stir the latest controversy over attorney-client privacy at the wartime prison.

“Any characterization regarding an intrusion in the attorney-client relationship is misleading,” said Cmdr. Douglas Short, lead prosecutor in the case of an Iraqi man accused of commanding al-Qaida’s army in Afghanistan after 9/11. He announced the explanation during a war court hearing Thursday, reading from a page that sounded nearly identical to a subsequent U.S. Southern Command press statement.

But the submission into the court record offered an unclassified window into a June 14 letter by the chief defense counsel, Marine Brig. Gen. John Baker. In it, Baker declared a “loss of confidence” in the integrity of “all potential attorney-client meeting locations” after learning some legal meetings were the victim of “intrusive monitoring.” The time period spanned September 2015 and April 2017.

Short did not explain why lawyers were meeting with prisoners in place where people could listen in on their consultations. But he said none of the overheard attorney-client meetings were with captives “currently in contested military commissions trial proceedings,” leaving open the possibility that some were conversations with convicts turned government witnesses.


He also said “no privileged attorney-client communications” were “overheard by anyone in a law enforcement or prosecution role,” but did not specify who was doing the listening at the base with 41 captives and a prison staff of 1,500 troops and civilians, some with intelligence roles.

The mysterious meeting room controversy 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.

A fuller explanation of what went on is classified, according to multiple military officials and attorneys who are privy to the problem that prompted the U.S. Southern Command to order a special investigation.

In response, Baker suggested the prosecution is in no place to evaluate the harm of such episodes.

BGen Baker Official Photo (1)
Marine Brig. Gen. John Baker, shown in his official photo, is the Chief Defense Counsel for Military Commissions

“The government’s suggestion this is a simple problem with a simple solution is sorely mistaken. You cannot un-ring a bell,” Baker said in a statement.

“This situation, like the ones before this, do harm to the attorney-client relationships at Guantánamo. Even if unintentional, accidents and coincidences that occur in Guantánamo Bay, can have devastating consequence, and at some point, could lead a reasonable client to believe he has no ability to have private conversations with his lawyer.”

At Southcom, Army Col. Lisa Garcia would not provide an update on a commander’s inquiry into the episode “to find facts and make recommendations for future operations.” Instead, Garcia issued a nearly identical statement to the prosecutor’s. Both noted the prison does have a designated meeting place “where the detainee can speak to his attorney without being overheard.” Neither Garcia’s nor Short’s similar statement answered the question of whether someone was recording at the special-site meetings.

Short made the statement in the first war court hearing following Islam’s holy month of Ramadan, a time when most Guantánamo defense lawyers traditionally don’t hold attorney-client meetings. So it is unclear how many of the dozens of defense lawyers for the captives are not discussing confidential topics with their clients in light of Baker’s advice.

Thursday’s hearing opened with Abd al Hadi al Iraqi, accused of commanding al-Qaida’s Army, thanking the judge for postponing the session until after Ramadan’s Eid al Fitr holiday. He said the delay let him spend the holiday “with my colleagues,” a reference to other former CIA captives now held at the clandestine Camp 7 prison, who include the alleged plotters of al-Qaida’s 9/11 and USS Cole attacks.

“You’re welcome,” Judge Marine Col. Peter Rubin replied.

In response to a question, Hadi’s Pentagon-paid attorney, Adam Thurschwell, said the prosecutor’s explanation of the latest attorney-client relationship challenge did not satisfy his concerns. “It makes a lot of assertions. In criminal litigation when the government says something, the defense doesn’t have to believe it.”

Cmdr. Aimee Cooper, Hadi’s military lawyer, said she continues to hold meetings with the Iraqi but restricts them to “health and comfort” conversations rather than legal discussions.

In early June, 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 don’t listen in on or record the meetings.

The Southcom statement did not explain why the prison was using an alternative spot for attorney-client meetings to those shown to reporters at Camp Echo, a location The Washington Post identified in 2004 as housing a CIA Black Site.

On June 27, a Justice Department lawyer sent an email to civilian lawyers who represent uncharged Guantánamo captives, inviting them to go to a “secure facility” in the Washington, D.C., area to read “a classified letter.” It “provides information primarily about detainees who met with their habeas attorneys in Camp Echo’s living areas between September 2015 and April 2017,” suggesting the unintentional eavesdropping occurred somewhere in the former CIA compound.

“Appropriate remedial actions are being taken,” the Pentagon prosecutor said in court, “including the offer to the defense counsel of an opportunity to inspect their meeting rooms to satisfy themselves that no overhearing is occurring.”


Carol Rosenberg: 305-376-3179, @carolrosenberg

The Southcom statement

The characterization regarding a “latest attorney-client relationship challenge” at Guantánamo is misleading. The detention facility at U.S. Naval Station Guantánamo Bay operates under the law of war. The detainees are members of Al Qaeda who are held as unprivileged enemy belligerents. Under the Geneva Conventions, U.S. law, and Department of Defense policies, a detainee in this status who faces trial by military commission for war crimes is entitled to the assistance of an attorney. Others who are not in pretrial proceedings may also be entitled to legal counsel. The commander of the facility implements the requirement of detainee access to counsel by designating a meeting place where the detainee can speak to his attorney without being overheard. The confidential nature of attorney-client communications is strictly observed by the military guard force in this location, even as comprehensive measures are in place to ensure the security of the facility and the safety of all who enter it. Every attorney given access to a detainee at Guantánamo is a licensed military or civilian member of the Bar who has a security clearance and must comply with U.S. laws. Recently, efforts to accommodate attorney-client meetings in a location other than the normally designated meeting rooms resulted in a small number of detainees — none of them currently in contested military commission trial proceedings — unintentionally being overheard in their communications with their attorneys. Upon learning this was occurring, the Commander of the facility put a stop to it, and self-reported the situation. Appropriate remedial actions are being taken. No privileged attorney-client communications have been heard by anyone in a law enforcement or prosecution role. Any suggestion that this situation has caused harm or that it demonstrates a lack of commitment to the attorney-client privilege is mistaken. As this is a matter that deals with the operation of the detention facility, further discussion must occur only in official channels and under appropriate security protocols.

Justice Department email

Subject: Guantánamo Bay Habeas Cases - Classified Letter

Dear Counsel:

I am writing to advise you that the Government has sent to the habeas secure facility a classified letter pertaining to attorney-client meetings conducted in Camp Echo at Guantánamo Bay between September 2015 and April 2017. Copies of the letter will be available to all security-cleared Guantánamo habeas attorneys beginning tomorrow at the habeas secure facility. The letter provides information primarily about detainees who met with their habeas attorneys in Camp Echo’s living areas between September 2015 and April 2017.

Andrew I. Warden

Civil Division, Federal Programs Branch